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Full text of "National Child Protection Act of 1993 : hearing before the Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, House of Representatives, One Hundred Third Congress, first session, on H.R. 1237 ... July 16, 1993"

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NATIONAL CHILD PROTECTION ACT OF 1993 



HEARING 

BEFORE THE 

SUBCOMMITTEE ON 
CIVIL AND CONSTITUTIONAL RIGHTS 

OF THE 

COMMITTEE ON THE JUDICIAKY 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 
ON 

H.R. 1237 

NATIONAL CHILD PROTECTION ACT OF 1993 



JULY 16, 1993 



Serial No. 50 




Printed for the use of the Co 



u>%Vt) 



BOSTON PUBLIC LIBRARY 

GOVERNMENT DOCUMENTS DEPARTMENT 
milium; uu llm Judicial > > 



80-609 cc 



U.S. GOVERNMENT PRINTING OFFICE 
WASHINGTON : 1994 



For sale by the U.S. Government Printing Office 
Superintendent of Documents. Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-046185-5 



Y H .2 Si I \ . toi/i° 
NATIONAL CHILD PROTECTION ACT OF 1993 



HEARING 

BEFORE THE 

SUBCOMMITTEE ON 
CIVIL AND CONSTITUTIONAL RIGHTS 

OF THE 

COMMITTEE ON THE JUDICIAKY 
HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRD CONGRESS 

FIRST SESSION 
ON 

H.R 1237 

NATIONAL CHILD PROTECTION ACT OF 1993 



JULY 16, 1993 



Serial No. 50 




Printed for the use of the Coi 



oV w W 



BOSfOd PUBLIC LIBRARY 

GOVERNMENT DOCUMENTS DEPARTMENT 

ni i ilttt'u uii l\w Judiuaij i 



U.S. GOVERNMENT PRINTING OFFICE 
80-609 CC WASHINGTON : 1994 

For sale by the U.S. Government Printing Office 
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402 
ISBN 0-16-046185-5 



COMMITTEE ON THE JUDICIARY 



JACK BROOKS 



DON EDWARDS, California 
JOHN CONYERS, JR., Michigan 
ROMANO L. MAZZOLI, Kentucky 
WILLIAM J. HUGHES, New Jersey 
MIKE SYNAR, Oklahoma 
PATRICIA SCHROEDER, Colorado 
DAN GLICKMAN, Kansas 
BARNEY FRANK, Massachusetts 
CHARLES E. SCHUMER, New York 
HOWARD L. BERMAN, California 
RICK BOUCHER, Virginia 
JOHN BRYANT, Texas 
GEORGE E. SANGMEISTER, Illinois 
CRAIG A. WASHINGTON, Texas 
JACK REED, Rhode Island 
JERROLD NADLER, New York 
ROBERT C. SCOTT, Virginia 
DAVID MANN, Ohio 
MELVIN L. WATT, North Carolina 
XAVIER BECERRA, California 



Texas, Chairman 

HAMILTON FISH, JR., New York 
CARLOS J. MOORHEAD, California 
HENRY J. HYDE, Illinois 
F. JAMES SENSENBRENNER, JR., 

Wisconsin 
BILL MCCOLLUM, Florida 
GEORGE W. GEKAS, Pennsylvania 
HOWARD COBLE, North Carolina 
LAMAR S. SMITH, Texas 
STEVEN SCHIFF, New Mexico 
JIM RAMSTAD, Minnesota 
ELTON GALLEGLY, California 
CHARLES T. CANADY, Florida 
BOB INGLIS, South Carolina 
BOB GOODLATTE, Virginia 



JONATHAN R. YaROWSKY, General Counsel 
ALAN F. COFFEY, Jr., Minority Chief Counsel 



Subcommittee on Civil and Constitutional Rights 

DON EDWARDS, California, Chairman 
PATRICIA SCHROEDER, Colorado HENRY J. HYDE, Illinois 

BARNEY FRANK, Massachusetts HOWARD COBLE, North Carolina 

CRAIG A. WASHINGTON, Texas CHARLES T. CANADY, Florida 

JERROLD NADLER, New York 

Catherine LeRoy, Counsel 

Ivy Davis- FOX, Assistant Counsel 

JAMES X. DEMPSEY, Assistant Counsel 

Virginia Sloan, Assistant Counsel 

MELODY BARNES, Assistant Counsel 

KATHRYN A. HAZEEM, Minority Counsel 



(ID 



CONTENTS 



HEARING DATE 



July 16, 1993 1 

TEXT OF BILL 
H.R. 1237 3 

OPENING STATEMENT 

Edwards, Hon. Don, a Representative in Congress from the State of Califor- 
nia, and chairman, Subcommittee on Civil and Constitutional Rights 1 

WITNESSES 

Handley, Col. Thomas A., legal counsel, Civil Air Patrol 66 

Miles-LaGrange, Vicki, senator, Oklahoma State Legislature, and chair, Okla- 
homa Senate Judiciary Committee, on behalf of the National Conference 

of State Legislatures 29 

Nemecek, David F. Inspector, Deputy Assistant Director, Policy and Liaison 

Branch, Criminal Justice Information Services Division, FBI 21 

Potts, Lawrence F., director of Administration, Boy Scouts of America 54 

Swann, Lynn C, president of the board, Big Brothers/Big Sisters of America .. 48 
Williams, Renova, director of personnel, Civil Air Patrol, Maxwell Air Force 

Base, Montgomery, AL 70 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Handley, Col. Thomas A., legal counsel, Civil Air Patrol: Prepared statement . 67 

Miles-LaGrange, senator, Oklahoma State Legislature, and chair, Oklahoma 
Senate Judiciary Committee, on behalf of the National Conference of State 

Legislatures: 

Prepared statement 38 

State criminal history background check laws (through December 31, 

1992) 31 

Nemecek, David F., Inspector, Deputy Assistant Director, Policy and Liaison 

Branch, Criminal Justice Information Services Division, FBI 24 

Potts, Lawrence F., director of administration, Boy Scouts of America: Pre- 
pared statement 56 

Schroeder, Hon. Patricia, a Representative in Congress from the State of 

Colorado: Prepared statement: 30 

Swann, Lynn C, president of the board, Big Brothers/Big Sisters of America: 

Prepared statement 50 

APPENDIX 
Material submitted for the hearing 75 



(III) 



NATIONAL CHILD PROTECTION ACT OF 1993 



FRIDAY, JULY 16, 1993 

House of Representatives, 
Subcommittee on Civil and Constitutional Rights, 

Committee on the Judiciary, 

Washington, DC. 
The subcommittee met, pursuant to notice, at 10 a.m., in room 
2237, Rayburn House Office Building, Hon. Don Edwards (chair- 
man of the subcommittee) presiding. 

Present: Representatives Don Edwards, Patricia Schroeder, and 
Charles T. Canady. 

Also present: James X. Dempsey, assistant counsel; Jancelyn 
Pegues, secretary; and Kathryn A. Hazeem, minority counsel. 

OPENING STATEMENT OF CHAIRMAN EDWARDS 

Mr. Edwards. The subcommittee will come to order. 

The purpose of this subcommittee meeting today is to examine 
H.R. 1237, a bill to establish procedures for national criminal back- 
ground checks for child care providers. We have invited a number 
of expert witnesses and we are looking forward to hearing from 
them. 

We are indebted to our colleague from Colorado, Mrs. Schroeder 
for being the original author of tnis legislation. Mrs. Schroeder has 
long been one of the Nation's strongest advocates for the welfare 
of children and we are very grateful for the leadership that she has 
offered on this bill. 

The bill before us strives for a balance, since the use of criminal 
history records for employment screening purposes raises impor- 
tant issues of fairness and due process. 

The FBI's criminal history records files have over 24 million indi- 
vidual names and records, and that is a significant portion, of 
course, of the work force. These records are far from perfect. The 
most serious problem is that as many as 40 to 60 percent of the 
records don't have dispositions, and dispositions are really essential 
for an accurate criminal record because you don't know if the per- 
son was found innocent or guilty. 

Someday I trust that we will resolve that very serious problem. 
Meanwhile, we must consider whether the FBI should provide to 
employers and licensing authorities naked arrest records when that 
person might have been innocent? That always has been of concern 
to the subcommittee. 

As a matter of fact, we used to have a 1-year rule with the FBI: 
if after a year, if there was not a disposition, the record could not 
be distributed. We will ask about Mr. Nemecek about that. 

(1) 



A second area of concern involves the impact of arrest record 
checks on the poor and on minorities who are disproportionately 
subject to arrests. Should a person be denied employment through- 
out his life based on an arrest many, many years ago? That is an- 
other issue that we should be discussing. 

A third problem is the delay involved in getting a response from 
the FBI. The FBI, in many cases, still uses the mail, and some- 
times getting a record takes 2 months or more. 

With all these issues in mind, we are looking forward to all the 
witnesses who are going to help us write this bill again. It passed 
the House last year, it was in the crime bill that passed the Senate 
but the conference report was unfortunately filibustered to death in 
the other body. 

This year, we hope to have it in the crime bill but if we don't, 
we are going to do it freestanding. 

[The bill, H.R. 1237, follows:] 



103d CONGRESS 
1st Session 



H.R. 1237 



To establish procedures for national criminal background checks for child 

care providers. 



IN THE HOUSE OF REPRESENTATIVES 

March 4, 1993 
Mrs. Schroeder (for herself, Mr. Edwards of California, Mr. Cramer, Mr. 
Kopetski, Mr. Ramstad, Mr. Shays, and Mr. Smith of Oregon) intro- 
duced the following bill; which was referred to the Committee on the 
Judiciary 



A BILL 

To establish procedures for national criminal background 
checks for child care providers. 

1 Be it enacted by the Senate and House of Representa- 

2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the "National Child Protec- 

5 tion Act of 1993". 

6 SEC. 2. REPORTING BY THE STATES. 

7 (a) In General. — An authorized criminal justice 

8 agency of a State shall report child abuse crime informa- 



2 

1 tion to, or index child abuse crime information in, the na- 

2 tional criminal background check system. 

3 (b) Provision of State Child Abuse Crime 

4 Records through the National Criminal Back- 

5 ground Check System.— (1) Not later than 180 days 

6 after the date of enactment of this Act, the Attorney Gen- 

7 eral shall — 

8 (A) investigate the criminal records of each 

9 State and determine for each State a timetable by 

10 which the State should be able to provide child 

11 abuse crime records on an on-line capacity basis 

12 through the national criminal background check sys- 

13 tern; 

14 (B) establish guidelines for the reporting or in- 

15 dexing of child abuse crime information, including 

16 guidelines relating to the format, content, and accu- 

17 racy of child abuse crime information and other pro- 

18 cedures for carrying out this Act; and 

19 (C) notify each State of the determinations 

20 made pursuant to subparagraphs (A) and (B). 

21 (2) The Attorney General shall require as a part of 

22 the State timetable that the State — 

23 (A) by not later than the date that is 3 years 

24 after the date of enactment of this Act, have in a 

25 computerized criminal history file at least 80 percent 



•HR 1237 IH 



3 

1 of the final dispositions that have been rendered in 

2 all identifiable child abuse crime cases in which 

3 there has been an event of activity within the last 

4 5 years; 

5 (B) continue to maintain at least an 80 percent 

6 reporting rate of final case dispositions in all identi- 

7 fiable child abuse crime cases in which there has 

8 been an event of activity within the preceding 5 

9 years; and 

10 (C) take steps to achieve full disposition report- 

11 ing, including data quality audits and periodic no- 

12 tices to criminal justice agencies identifying records 

13 that lack final dispositions and requesting those dis- 

14 positions. 

15 (c) Liaison. — An authorized agency of a State shall 

16 maintain close liaison with the National Center on Child 

17 Abuse and Neglect, the National Center for Missing and 

18 Exploited Children, and the National Center for the Pros- 

19 ecution of Child Abuse for the exchange of technical as- 

20 sistance in cases of child abuse. 

21 (d) Annual Summary. — (1) The Attorney General 

22 shall publish an annual statistical summary of the child 

23 abuse crime information reported under this Act. 

24 (2) The annual statistical summary described in 

25 paragraph (1) shall not contain any information that may 

•HR 1237 IH 



6 



4 

1 reveal the identity of any particular victim or alleged viola- 

2 tor. 

3 (e) Annual Report. — The Attorney General shall 

4 publish an annual summary of each State's progress in 

5 reporting child abuse crime information to the national 

6 criminal background check system. 

7 (f) Study op Child Abuse Offenders. — (1) Not 

8 later than 180 days after the date of enactment of this 

9 Act, the Administrator of the Office of Juvenile Justice 

10 and Delinquency Prevention shall begin a study based on 

11 a statistically significant sample of convicted child abuse 

12 offenders and other relevant information to determine — 

13 (A) the percentage of convicted child abuse of- 

14 fenders who have more than 1 conviction for an of- 

15 fense involving child abuse; 

16 (B) the percentage of convicted child abuse of- 

17 fenders who have been convicted of an offense in- 

18 volving child abuse in more than 1 State; 

19 (C) whether there are crimes or classes of 

20 crimes, in addition to those defined as background 

21 check crimes in section 5, that are indicative of a 

22 potential to abuse children; and 

23 (D) the extent to which and the manner in 

24 which instances of child abuse form a basis for con- 

25 victions for crimes other than child abuse crimes. 

•HR 1237 IH 



5 

1 (2) Not later than 1 year after the date of enactment 

2 of this Act, the Administrator shall submit a report to the 

3 Chairman of the Committee on the Judiciary of the Senate 

4 and the Chairman of the Committee on the Judiciary of 

5 the House of Representatives containing a description of 

6 and a summary of the results of the study conducted pur- 

7 suant to paragraph (1). 

8 SEC. 3. BACKGROUND CHECKS. 

9 (a) In General. — (1) A State may have in effect 

10 procedures (established by or under State statute or regu- 

11 lation) to permit a qualified entity to contact an author- 

12 ized agency of the State to request a nationwide back- 

13 ground check for the purpose of determining whether 

14 there is a report that a provider has been convicted of 

15 a background check crime. 

16 (2) The authorized agency shall access and review 

17 State and Federal records of background check crimes 

18 through the national criminal background check system 

19 and shall respond promptly to the inquiry. 

20 (b) Guidelines. — (1) The Attorney General shall es- 

21 tablish guidelines for State background check procedures 

22 established under subsection (a), which guidelines shall in- 

23 elude the requirements and protections of this Act. 

24 (2) The guidelines established under paragraph (1) 

25 shall require — 



•HR 1237 IH 



8 

6 

1 (A) that no qualified entity may request a back- 

2 ground check of a provider under subsection (a) un- 

3 less the provider first provides a set of fingerprints 

4 and completes and signs a statement that — 

5 (i) contains the name, address, and date of 

6 birth appearing on a valid identification docu- 

7 ment (as defined by section 1028(d)(1) of title 

8 18, United States Code) of the provider; 

9 (ii) the provider has not been convicted of 

10 a background check crime and, if the provider 

11 has been convicted of a background check 

12 crime, contains a description of the crime and 

13 the particulars of the conviction; 

14 (iii) notifies the provider that the entity 

15 may request a background check under sub- 

16 section (a); 

17 (iv) notifies the provider of the provider's 

18 rights under subparagraph (B); and 

19 (v) notifies the provider that prior to the 

20 receipt of the results of the background check 

21 the qualified entity may choose to deny the pro- 

22 vider unsupervised access to a child to whom 

23 the qualified entity provides child care; 



•HR 1237 m 



7 

1 (B) that each State establish procedures under 

2 which a provider who is the subject of a background 

3 check under subsection (a) is entitled — 

4 (i) to obtain a copy of any background 

5 check report and any record that forms the 

6 basis for any such report; and 

7 (ii) to challenge the accuracy and com- 

8 pleteness of any information contained in any 

9 such report or record and obtain a prompt de- 

10 termination from an authorized agency as to 

1 1 the validity of such challenge; 

12 (C) that an authorized agency to which a quali- 

13 fied entity has provided notice pursuant to sub- 

14 section (a) make reasonable efforts to complete re- 

15 search in whatever State and local recordkeeping 

16 systems are available and in the national criminal 

17 background check system and respond to the quali- 

18 fied entity within 15 business days; 

19 (D) that the response of an authorized agency 

20 to an inquiry pursuant to subsection (a) inform the 

21 qualified entity that the background check pursuant 

22 to this section — 

23 (i) may not reflect all convictions for a 

24 background check crime; and 



•HR 1237 EH 



10 



8 

1 (ii) may not be the sole basis for determin- 

2 ing the fitness of a provider; 

3 (E) that the response of an authorized agency 

4 to an inquiry pursuant to subsection (a) be limited 

5 to the conviction information reasonably required to 

6 accomplish the purposes of this Act; 

7 (F) that the qualified entity may choose to deny 

8 the provider unsupervised access to a child to whom 

9 the qualified entity provides child care on the basis 

10 of conviction information provided pursuant to a 

1 1 background check under subsection (a) until the pro- 

12 vider has obtained a determination as to the validity 

13 of any challenge under subparagraph (B) or waived 

14 the right to make such challenge; and 

15 (G) that each State establish procedures to en- 

16 sure that any background check under subsection 

17 (a) and the results thereof shall be requested by and 

18 provided only to— 

19 (i) qualified entities identified by States; 

20 (ii) authorized representatives of a quali- 

21 fled entity who have a need to know such infor- 

22 mation; 

23 (iii) the provider who is the subject of a 

24 background check; 

25 (iv) law enforcement authorities; or 

• HR 1237 m 



11 



9 

1 (v) pursuant to the direction of a court of 

2 law; 

3 (H) that background check information con- 

4 veyed to a qualified entity pursuant to subsection (a) 

5 shall not be conveyed to any person except as pro- 

6 vided under subparagraph (G); and 

7 (I) that a State or Federal employee or an em- 

8 ployee of a political subdivision of a State respon- 

9 sible for providing information to the national crimi- 

10 nal background check system shall not be liable in 

11 an action at law for damages for failure to prevent 

12 a qualified entity from taking action adverse to a 

13 provider on the basis of a criminal background 

14 check. 

15 (c) Equivalent Procedures. — (1) Notwithstand- 

16 ing anything tc the contrary in this section, the Attorney 

17 General may certify that a State licensing or certification 

18 procedure that differs from the procedures described in 

19 subsections (a) and (b) shall be deemed to be the equiva- 

20 lent of such procedures for purposes of this Act, but the 

21 procedures described in subsections (a) and (b) shall con- 

22 tinue to apply to those qualified entities, providers, and 

23 background check crimes that are not governed by or in- 

24 eluded within the State licensing or certification proce- 

25 dure. 



12 

10 

1 (2) The Attorney General shall by regulation estab- 

2 lish criteria for certifications under this subsection. Such 

3 criteria shall include a finding by the Attorney General 

4 that the State licensing or certification procedure accom- 

5 plishes the purposes of this Act and incorporates a nation- 

6 wide review of State and Federal records of background 

7 check offenses through the national criminal background 

8 check system. 

9 (d) Regulations. — (1) The Attorney General may 

10 by regulation prescribe such other measures as may be 

11 required to carry out the purposes of this Act, including 

12 measures relating to the security, confidentiality, accu- 

13 racy, use, misuse, and dissemination of information, and 

14 audits and recordkeeping. 

15 (2) The Attorney General shall, to the maximum ex- 

16 tent possible, encourage the use of the best technology 

17 available in conducting background checks. 

18 SEC. 4. FUNDING FOR IMPROVEMENT OF CHILD ABUSE 

19 CRIME INFORMATION. 

20 (a) Use of Formula Grants for Improvements 

21 in State Records and Systems. — Section 509(b) of 

22 the Omnibus Crime Control and Safe Streets Act of 1968 

23 (42 U.S.C. 3759(b)) is amended— 

24 (1) in paragraph (2) by striking "and" after 

25 the semicolon; 

•HR 1237 IH 



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11 

1 (2) in paragraph (3) by striking the period and 

2 inserting "; and"; and 

3 (3) by adding at the end the following new 

4 paragraph: 

5 "(4) the improvement of State record systems 

6 and the sharing of all of the records described in 

7 paragraphs (1), (2), and (3) and the records re- 

8 quired under section 2 of the National Child Protec- 

9 tion Act of 1993 with the Attorney General for the 

10 purpose of implementing the National Child Protec- 

11 tion Act of 1993.". 

12 (b) Additional Funding Grants for the Im- 

13 PROVEMENT OF CHILD ABUSE CRIME INFORMATION. — 

14 (1) The Attorney General shall, subject to appropriations 

15 and with preference to States that, as of the date of enact- 

16 ment of this Act, have in computerized criminal history 

17 files the lowest percentage of dispositions of identifiable 

18 child abuse cases, make a grant to each State to be used — 

19 (A) for the computerization of criminal history 

20 files for the purposes of this Act; 

21 (B) for the improvement of existing computer- 

22 ized criminal history files for the purposes of this 

23 Act; 



•HR 1237 EH 



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12 

1 (C) to improve accessibility to the national 

2 criminal background check system for the purposes 

3 of this Act; and 

4 (D) to assist the State in the transmittal of 

5 criminal records to, or the indexing of criminal his- 

6 tory record in, the national criminal background 

7 check system for the purposes of this Act. 

8 (2) There are authorized to be appropriated for 

9 grants under paragraph (1) a total of $20,000,000 for fis- 

10 cal years 1994, 1995, and 1996. 

11 (c) Withholding State Funds. — Effective 1 year 

12 after the date of enactment of this Act, the Attorney Gen- 

13 eral may reduce, by up to 10 percent, the allocation to 

14 a State for a fiscal year under title I of the Omnibus 

15 Crime Control and Safe Streets Act of 1968 that is not 

16 in compliance with the timetable established for that State 

17 under section 2 of this Act. 

18 SEC. 5. DEFINITIONS. 

19 For the purposes of this Act — 

20 (1) the term "authorized agency" means a divi- 

21 sion or office of a State designated by a State to re- 

22 port, receive, or disseminate information under this 

23 Act; 

24 (2) the term "background check crime" means 

25 a child abuse crime, murder, manslaughter, aggra- 

•HR 1237 SB 



15 



13 

1 vated assault, kidnapping, arson, sexual assault, do- 

2 mestic violence, incest, indecent exposure, prostitu- 

3 tion, promotion of prostitution, and a felony offense 

4 involving the use or distribution of a controlled sub- 

5 stance; 

6 (3) the term "child" means a person who is a 

7 child for purposes of the criminal child abuse law of 

8 a State; 

9 (4) the term "child abuse" means the physical 

10 or mental injury, sexual abuse or exploitation, ne- 

11 glectful treatment, negligent treatment, or maltreat- 

12 ment of a child by any person in violation of the 

13 criminal child abuse laws of a State, but does not in- 

14 elude discipline administered by a parent or legal 

15 guardian to his or her child provided it is reasonable 

16 in manner and moderate in degree and otherwise 

17 does not constitute cruelty; 

18 (5) the term "child abuse crime" means a crime 

19 committed under any law of a State that establishes 

20 criminal penalties for the commission of child abuse 

21 by a parent or other family member of a child or by 

22 any other person; 

23 (6) the term "child abuse crime information" 

24 means the following facts concerning a person who 

25 is under indictment for, or has been convicted of, a 

•HR 1237 IH 



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14 

1 child abuse crime: full name, race, sex, date of birth, 

2 height, weight, fingerprints, a brief description of 

3 the child abuse crime or offenses for which the per- 

4 son has been arrested or is under indictment or has 

5 been convicted, the disposition of the charge, and 

6 any other information that the Attorney General de- 

7 termines may be useful in identifying persons ar- 

8 rested for, under indictment for, or convicted of, a 

9 child abuse crime; 

10 (7) the term "child care" means the provision 

11 of care, treatment, education, training, instruction, 

12 supervision, or recreation to children; 

13 (8) the term "domestic violence" means a fel- 

14 ony or misdemeanor involving the use or threatened 

15 use of force by — 

16 (A) a present or former spouse of the vic- 

17 tim; 

18 (B) a person with whom the victim shares 

19 a child in common; 

20 (C) a person who is cohabiting with or has 

21 cohabited with the victim as a spouse; or 

22 (D) any person defined as a spouse of the 

23 victim under the domestic or family violence 

24 laws of a State; 



•HR 1237 IH 



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15 

1 (9) the term "exploitation" means child pornog- 

2 raphy and child prostitution; 

3 (10) the term "mental injury" means harm to 

4 a child's psychological or intellectual functioning, 

5 which may be exhibited by severe anxiety, depres- 

6 sion, withdrawal or outward aggressive behavior, or 

7 a combination of those behaviors or by a change in 

8 behavior, emotional response, or cognition; 

9 (11) the term "national criminal background 

10 check system" means the criminal history record 

1 1 system maintained by the Federal Bureau of Inves- 

12 tigation based on fingerprint identification or any 

13 other method of positive identification; 

14 (12) the term "negligent treatment" means the 

15 failure to provide, for a reason other than poverty, 

16 adequate food, clothing, shelter, or medical care so 

17 as to seriously endanger the physical health of a 

18 child; 

19 (13) the term "physical injury" includes lacera- 

20 tions, fractured bones, burns, internal injuries, se- 

21 vere bruising, and serious bodily harm; 

22 (14) the term "provider" means 

23 (A) a person who — 

24 (i) is employed by or volunteers with 

25 a qualified entity; 

•HR 1237 IH 



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16 

1 (ii) who owns or operates a qualified 

2 entity; or 

3 (iii) who has or may have unsuper- 

4 vised access to a child to whom the quali- 

5 fied entity provides child care; and 

6 (B) a person who— 

7 (i) seeks to be employed by or volun- 

8 teer with a qualified entity; 

9 (ii) seeks to own or operate a qualified 

10 entity; or 

11 (iii) seeks to have or may have unsu- 

12 pervised access to a child to whom the 

13 qualified entity provides child care; 

14 (15) the term "qualified entity" means a busi- 

15 ness or organization, whether public, private, for- 

16 profit, not-for-profit, or voluntary, that provides 

17 child care or child care placement services, including 

18 a business or organization that licenses or certifies 

19 others to provide child care or child care placement 

20 services; 

21 (16) the term "sex crime" means an act of sex- 

22 ual abuse that is a criminal act; 

23 (17) the term "sexual abuse" includes the em- 

24 ployment, use, persuasion, inducement, enticement, 

25 or coercion of a child to engage in, or assist another 

•HR 1237 IH 



19 



17 

1 person to engage in, sexually explicit conduct or the 

2 rape, molestation, prostitution, or other form of sex- 

3 ual exploitation of children or incest with children; 

4 and 

5 (18) the term "State" means a State, the Dis- 

6 trict of Columbia, the Commonwealth of Puerto 

7 Rico, American Samoa, the Virgin Islands, Guam, 

8 and the Trust Territories of the Pacific. 



• HR 1237 IH 



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20 



I 



Mr. Edwards. I yield to the gentlewoman from Colorado, Mrs. 
Schroeder. 

Mrs. Schroeder. Thank you very much, Mr. Chairman. I think 
ou are underplaying your very active role in helping us draft this 
ill. We thank you so much for helping us. 

The original cosponsors of the bill are delighted that this hearing 
has been scheduled because this is something we have been trying 
to get through here forever, and I think it is long overdue. 

The National Child Protection Act of 1993 is what we are talking 
about today. It is something that Oprah Winfrey has dedicated her 
energy and talents to. The bottom line is it is incredible in this 
country that with all the technology, with all the ways that we 
could streamline communication between States, that we have still 
not done this vis-a-vis protecting children from people who have 
moved across jurisdictions and continue to interface with kids. 

What this legislation basically does is to provide grants to States 
to improve their reporting to the national crime reporting system 
that provides the data on convicted child abusers. That is very im- 
portant. Then States will be able to access this data base to finish 
background checks on anyone who is going to be a child care pro- 
vider or a volunteer in youth service organizations. 

I have always been amazed, I think all the cosponsors have been 
amazed, that we seem to care much more about cars than we do 
kids in this country. We have much better information systems 
about stolen cars, about all of those types of issues around auto- 
mobiles, than we do children. 

This bill would authorize $20 million in direct Federal assistance 
to help States improve the reporting of their criminal justice 
records. I think that the issues that the chairman brought up are 
very important. We obviously want to make sure these records are 
valid and that they are not prejudging people. But once we have 
found someone convicted, we want them on the record so that peo- 
ple can find this out. 

I thank you so much for moving on this. I am anxious to hear 
the witnesses today. I am going to ask unanimous consent to put 
the rest of my statement in the record, Mr. Chairman. And thank 
you once more sincerely for your help and the staffs help and ev- 
eryone else's in bringing this to the forefront today. 

Mr. Edwards. Without objection, the gentlewoman's statement 
will be made part of the record in full. 

[The prepared statement of Mrs. Schroeder follows:] 

Prepared Statement of Hon. Patricia Schroeder, a Representative in 
Congress From the State of Colorado 

Mr. Chairman, thank you for holding this hearing today and for your support 
throughout the development of this bill. On March 4, you and I along with Rep- 
resentatives Bud Cramer, Michael Kopetski, Jim Ramstad, Bob Smith, and Chris 
Shays introduced the National Child Protection Act of 1993. This bill is designed 
to protect children from being abused and victimized when they are in child care 
or involved in youth activities outside their homes. 

I want to thank the original cosponsors as well as the other additional cosponsors 
of this legislation for their commitment to ensuring the safety of our nation's most 
vulnerable children. I also want to thank the many groups that have responded so 
positively to the legislation and have provided valuable input. 

A very special thanks to Ms. Oprah Winfrey who has dedicated her energy and 
talents to focusing the spotlight or public attention on the issue of child abuse and 
this issue in particular. 



21 



21 

I also want to thank the members and staff of the former House Select Committee 
on Children, Youth, and Families. Their hard work on this issue and the issue of 
child abuse will be sorely missed by Congress. 

This legislation will provide grants to states to improve their reporting to the na- 
tional crime reporting system by providing data on convicted child abusers. States 
will be able to access the data base to complete background checks on potential and 
current child care providers and volunteers with youth service organizations. Hav- 
ing access to this data will prevent persons convicted of child abuse crimes from 
being hired in these settings. 

The bill authorizes $20 million in direct Federal assistance to help states to im- 
prove the reporting of their criminal justice records. The legislation includes specific 
timetables so that accurate, up-to-date information on child abuse convictions will 
be available on a national basis within three years. The bill contains safeguards to 
ensure that information provided is accurate, current, and includes only convictions 
of abuse. 

Child care providers and youth-serving organizations will be able to conduct back- 
ground checks on current or potential employees or volunteers by making applica- 
tions with the appropriate state agency. The cost of the background check will be 
borne by the employer or organization. 

I'm anxious to hear our witnesses today and to swiftly report out this bill so the 
full House can pass it. 

Mr. Edwards. The ranking minority member, Mr. Henry Hyde 
of Illinois, deeply regrets that a prior appointment will not allow 
him to be here today. Mr. Hyde has always been of great help in 
legislation like this and I know he is sorry that he is not here. 

The gentleman from Florida, Mr. Canady. 

Mr. Canady. Thank you, Mr. Chairman. I would like to join in 
thanking you for calling this hearing today. This is an important 
issue and deserves the consideration of this committee. 

I appreciate each of the witnesses taking their time to be with 
us and I am looking forward to hearing what they have to say. This 
is a somewhat complex issue and I think it deserves our serious 
consideration. 

We need to look at all aspects of it to make sure we come up with 
a workable solution that will provide the information we need in 
a cost-effective manner. 

Thank you, Mr. Chairman. 

Mr. Edwards. Thank you, Mr. Canady. 

Our first witnesses is David F. Nemecek who has been a friend 
and adviser to the subcommittee for many years and we have 
worked very closely with Mr. Nemecek. He is the Deputy Assistant 
Director in charge of the Policy and Liaison Branch of the Criminal 
Justice Information Services Division of the FBI. 

Welcome. 

Without objection, your full statement will be made part of the 
record. If you could summarize your statement, we would appre- 
ciate it. 

STATEMENT OF DAVED F. NEMECEK, INSPECTOR, DEPUTY AS- 
SISTANT DIRECTOR, POLICY AND LIAISON BRANCH, CRIMI- 
NAL JUSTICE INFORMATION SERVICES DIVISION, FBI 

Mr. Nemecek. Thank you very much, Mr. Chairman, other Mem- 
bers, staff. It is a pleasure for me to be here again today and to 
make some brief comments regarding this particular issue. 

With regard to H.R. 1237, the National Child Protection Act, let 
me first state unequivocally that the administration strongly sup- 
ports the goals of tnis act, protection of this Nation's children from 



22 

abuse. Nothing is more important than the well-being of our most 
precious national resource, our children. 

The FBI and the Department of Justice are committed to the 
successful implementation of legislation which addresses this 
problem. 

My testimony today will address your bill from the perspective 
of the FBI. As you indicated, I represent the new CJIS Division. 
This Division is particularly affected by any legislation which in- 
volves access to documented criminal information, whether the in- 
formation is to identify fugitives or criminal history records. This 
Division is now responsible for managing all of these information 
services. These include the National Crime Information Center, 
known as NCIC, the uniform crime reporting system, which is our 
statistical system, and the fingerprint-based criminal history record 
system. 

NCIC is the online system accessed by police officers typically 
throughout the United States when a citizen is contacted on the 
street. NCIC provides information on fugitives, missing children 
and stolen property such as motor vehicles. 

The interstate identification index, known as III, which is 
accessed through the NCIC system, is an automated criminal his- 
tory record system that can be inquired upon based upon name and 
numeric identifier. A III response provides arrest and disposition 
information, originating from State records in 24 States, and these 
are known as participating States. 

The rest of the criminal history record information now comes 
from the FBI, until such time as these States are in a technical po- 
sition to provide their records. Due to the laws of many of the 24 
participating States which restrict dissemination of criminal his- 
tory records, the III system is currently reserved only for criminal 
justice agencies for criminal justice purposes and for certain Fed- 
eral agencies with national security responsibilities for narrowly 
defined national security purposes. 

Perhaps most important to my discussion of 1237 is access to 
FBI-maintained fingerprint records. These records consist of finger- 
print records, personal identification information, such as date of 
birth and physical descriptors, and listings of the subject's arrest 
and disposition of these arrests. 

These records are currently accessed by manual submission, that 
is through the mail, by submitting all fingerprints for criminal jus- 
tice and noncriminal justice purposes as covered by applicable Fed- 
eral and State laws. 

We are in the process of upgrading all of these systems. With the 
support of this committee and Congress, we are in the process of 
creating a new automated system called the integrated automated 
fingerprint identification system, known as IAFIS, and this will be 
completed in 1998. 

This will support automated submission of 10-print fingerprint 
cards for all criminal and noncriminal justice purposes. This will 
permit online searching, and what that means is a very timely in- 
quiry to determine identification, as well as to retrieve criminal 
history records. 

This will greatly increase the speed and efficiency of noncriminal 
justice background screening, possibly reducing the turnaround 



23 

time from the current average of 2 weeks to 2 hours, or up to 24 
hours. 

Many Federal and State agencies now access this data base for 
many of the purposes covered by 1237. Thirty-one States and the 
District of Columbia have enacted statutes that require criminal 
history screening for some category of child care providers. This 
screening is currently accomplished through submission of finger- 
prints to the FBI, channeled through the State Identification 
Bureau. 

In addition, the Comprehensive Crime Control Act of 1990 re- 
quires criminal history screening for employees of federally run 
child care centers. Effectiveness of screening via these provisions is 
currently being evaluated by the Inspector General of the Depart- 
ment of Health and Human Services. 

Child care provider criminal history background screening is cur- 
rently accomplished by providing the complete criminal history 
record to a Federal, State or local agency. These private child care 
providers do not receive access to an applicant's criminal history in- 
formation. That is, there is a screening or regulating agency at the 
State level. 

This system has tangible benefits. First, use of licensing or 
screening agencies ensures uniform application of standards with 
respect to whether certain criminal records disqualify an applicant 
for employment. Second, control of the information, which is gen- 
erally sensitive and not for general dissemination, is greater with 
governmental agencies. 

Centralization of the screening function provides an easily acces- 
sible point for auditing of access to and dissemination of sensitive 
record information. This is an issue to which the FBI is particu- 
larly sensitive. Protection of criminal history records has proven to 
be difficult, especially without the existence of complete Federal 
criminal sanctions against unauthorized possession and/or dissemi- 
nation of such information. 

One of the strengths of H.R. 1237 is its recognition of the impor- 
tance of fingerprints to the screening process as the only existing 
method of positive identification. This proposal appropriately re- 
quires criminal history screening by fingerprint submissions and 
therefore will avoid misidentification. The FBI continues to support 
and urge the use of fingerprint identification in all history record 
screening systems. 

Several other technical points should also be highlighted. Section 
3(b)(E) limits the information that can be disseminated to author- 
ized recipients to "convictions." FBI criminal history records to a 
large extent are not complete with respect to disposition of arrests. 

Additionally, State criminal records are often not complete or 
fully automated, making access as required by 1237 difficult, if not 
impossible, without significant updating and improvement of many 
State systems. H.R. 1237 contains some funding authorizations for 
these purposes similar to funding provided in previous handgun 
purchaser screening legislation. 

Much of the burden of legislation which involves access to crimi- 
nal history records falls on State record systems. These burdens in- 
clude minimum standards for disposition reporting which must be 
met within specific time periods, subject to funding cuts if not met. 



24 

It is likely that many States will face such reductions absent sig- 
nificant Federal funding. 

I would also note that currently Congress has authorized the FBI 
to charge fees for noncriminal justice access to our record system. 
These fees are necessary to maintain the system given the addi- 
tional burden that employment and licensing screening creates. 

We read nothing in H.R. 1237 that abrogates this authorization 
for screening requests under its provisions and believe such fees to 
be appropriate given the interests of both the Federal Government 
and States in fairly apportioning the cost of the system. 

In closing, the FBI, Department of Justice and the administra- 
tion strongly support the goals of this legislation and look forward 
to continued cooperation with your subcommittee in your efforts to 
address this important problem. 

Thank you, Mr. Chairman. 

Mr. Edwards. Thank you. 

[The prepared statement of Mr. Nemecek follows:] 

Prepared Statement of David F. Nemecek, Inspector, Deputy Assistant Direc- 
tor, Policy and Liaison Branch, Criminal Justice Information Services Di- 
vision, FBI 

Mr. Chairman, and members of the Subcommittee, I appreciate the opportunity 
to appear before you today to discuss H.R. 1237, the "National Child Protection Act." 
Let me first state unequivocally that the Administration strongly supports the goals 
of the Act — protection of this Nation's children from abuse. Nothing is more impor- 
tant than the well-being of our most precious national resource — our children. The 
FBI and the Department of Justice are committed to the successful implementation 
of legislation which addresses this problem. My testimony today will address your 
bill from the perspective of the FBI. 

As you know, I represent the FBI's newly formed Criminal Justice Information 
Services Division. CJIS, as the Division is known, is particularly affected by any leg- 
islation, such as H.R. 1237, which involves access to documented criminal informa- 
tion, whether it be information to identify fugitives or criminal history record. CJIS 
is now responsible for managing all FBI systems providing criminal or identification 
information to Federal, state, and local agencies. These systems include the Na- 
tional Crime Information Center, known as NCIC, the Uniform Crime Reporting 
program, and the fingerprint-based criminal history record system. 

A brief word of explanation about some of these systems may be helpful because 
they may be affected directly by this and other similar legislative proposals. NCIC 
is the online system accessed by police officers typically when a citizen is contacted 
on the street. NCIC provides information specifically to enable the immediate identi- 
fication of fugitives, missing persons, and stolen property such as motor vehicles. 

The Interstate identification Index, known as III, is accessed through the NCIC 
telecommunications network. Ill provides automated criminal history information 
based on name and a numeric identifier. An III response, which provides arrest and 
disposition information, originates from the criminal records maintained by 24 
states, known as "participating states," and from FBI records for the 26 non- "par- 
ticipating" states. Due to laws of many of the 24 participating states which restrict 
dissemination of criminal records, III is currently reserved for 1) criminal justice 
agencies using III for criminal justice purposes, and 2) certain Federal agencies with 
National security responsibility for narrowly defined National security employee 
screening. 

Perhaps most important to my discussion of H.R. 1237, is access to FBI-main- 
tained fingerprint records. These records consist of fingerprints, personal identifica- 
tion information, such as date-of-birth and physical descriptors, and listings of the 
subject's arrests and dispositions of those arrests. These records are currently 
accessed by manual submission of ten-print fingerprint cards for both criminal jus- 
tice and noncriminal justice purposes under applicable Federal and state laws. 

All of these systems are in the process of being upgraded. The Integrated Auto- 
mated Fingerprint Identification System (IAFIS), scheduled to be completed in early 



25 

1998, will support automated submission of ten-print fingerprint records for screen- 
ing purposes. This system will allow the online submission and searching of finger- 
prints, and the return of relevant criminal history records to criminal justice re- 
questers. This will greatly increase the speed and efficiency of noncriminal justice 
background screening possibly reducing the turn-around time from the current two 
weeks to two hours. 

Many Federal and state agencies now access the fingerprint-based criminal his- 
tory records maintained by the FBI for purposes similar or identical to the purpose 
of Hit. 1237. Thirty-one (31) states and the District of Columbia have enacted stat- 
utes that require criminal history screening for some category of child care provid- 
ers. This screening is currently accomplished through submission of fingerprints to 
the FBI. In addition, the Comprehensive Crime Control Act of 1990 requires crimi- 
nal history screening for employees of Federally-run child care centers. The effec- 
tiveness of screening pursuant to these provisions is currently being evaluated by 
the Inspector General of the Department of Health and Human Services. 

Chile! care provider criminal history background screening is currently accom- 
plished by providing the complete criminal history record to a Federal, state, or local 
agency. Private child care providers do not receive access to an applicant's criminal 
history record information. This system has tangible benefits. First, use of licensing 
or screening agencies ensures uniform application of standards with respect to 
whether certain criminal records disqualify an applicant for employment. Second, 
control of the information, which is generally sensitive and not for general dissemi- 
nation, is greater with governmental agencies. Centralization of the screening func- 
tion provides an easily accessible point for auditing of access to and dissemination 
of sensitive record information. This is an issue to which the FBI is particularly sen- 
sitive. Protection of criminal history records has proven to be difficult, especially 
without the existence of any Federal criminal sanctions against unauthorized pos- 
session and/or dissemination of such information. 

One of the strengths of H.R. 1237 is its recognition of the importance of finger- 
prints to the screening process as the only existing method of positive identification. 
This proposal appropriately requires criminal history screening by fingerprint sub- 
missions and therefore will avoid misidentification. The FBI continues to support 
and urge the use of fingerprint identification in all criminal history screening 
systems. 

Several other technical points should also be highlighted. Section 3(b)(E) limits 
the information that can be disseminated to authorized recipients to "convictions." 
FBI criminal history records to a large extent are not complete with respect to dis- 
positions of arrests. Additionally, state criminal records are often not fully auto- 
mated, making access as required by H.R. 1237 difficult, if not impossible, without 
significant updating and improvement of many state systems. H.R. 1237 contains 
some funding authorizations for these purposes, similar to funding provided in pre- 
vious handgun purchaser screening legislation. Much of the burden of legislation 
which involves access to criminal history records falls on state record systems. 
Those burdens include, with respect to H.R. 1237, minimum standards for disposi- 
tion reporting which must be met within specific time periods, subject to funding 
cuts if not met. It is likely that many states will face such reductions absent signifi- 
cant Federal funding. 

I would also note that currently Congress has authorized the FBI to charge fees 
for noncriminal justice access to our criminal history record system. These fees are 
necessary to maintain the system given the additional burden that employment and 
licensing screening creates. We read nothing in H.R. 1237 that abrogates this au- 
thorization for screening requests under its provisions and believe such fees to be 
appropriate given the interests of both the Federal government and states in fairly 
apportioning the costs of the system. 

In closing, let me again state: the FBI, Department of Justice, and the Adminis- 
tration strongly support the goals of this legislation and look forward to continued 
cooperation with your Subcommittee in your efforts to address this important prob- 
lem. 

I would be happy to answer any questions members of the Subcommittee may 
have. 

Mr. Edwards. Mrs. Schroeder, do you have any questions of the 
FBI? 

Mrs. Schroeder. I am not quite sure I understood, you said 
there are 24 States going along with the III? 

Mr. Nemecek. Yes. We actually have 50 States that make in- 
quiries into the system. We are in the process of decentralizing the 



26 

FBI's recordkeeping responsibility because we know there are more 
accurate and complete records at the State level. We have 24 
States now that have connected their computers to our computer 
systems so that we can have a rapid retrieval of that information 
rather than relying on the FBI's records. 

So this actually is a positive step to giving us more complete 
records for these purposes. 

Mrs. Schroeder. So this bill would help accelerate that, the $20 
million in grants for States? 

Mr. NEMECEK. Certainly, it will help. One of the conditions of 
participating is to have good quality records, more complete 
records, automated records, and certainly this money would help 
accelerate that process. 

Mrs. Schroeder. What do you see as the biggest drawback? If 
you had a wish list — I know you said you basically support this. If 
there was one thing you could put in here that would make the 
FBI's iob easier — is it an FBI problem, is it a State court problem, 
is it that you don't have proper equipment? What is the problem? 

Mr. NEMECEK. I am sure it is a fairly common problem, but as 
long as I am wishing, the wish is that there would be sufficient 
money to have 100 percent accurate records with all of the disposi- 
tions, arrests, convictions, and that all these records were 
automated. 

As I believe you are aware, we have spent a number of years try- 
ing to improve the quality of these records at the FBI and State 
and local level. We find that this is not always the highest priority 
in criminal justice, and that is getting these records, following up 
on an arrest when a court doesn't report a disposition, et cetera, 
and the entire burden falls upon the law enforcement agencies to 
collect this data. 

So to the extent that we can improve these systems, and we are; 
to the extent we can create automated links from the courts to the 
State data bases to add the convictions; to the extent that we can 
automate correctional information, prosecutors' information, we 
have made a great deal of progress over the years, then I think we 
need to fund these initiatives, particularly at the local and State 
level, to get these complete records, because the future of criminal 
history record systems in this country is to focus on State data 
bases with the FBI playing a role of a national index for identifica- 
tion and then a coordinator of facilitating the flow of this informa- 
tion. So the funding is a very critical element. 

The $20 million certainly will not complete the job. To the extent 
that we can find ways to continue the flow of information, that is 
probably the most important focus we could have. 

Mrs. Schroeder. Where do you think the information channel 
breaks down the most or is there a better place to place it? It is 
hard for the average American to understand how we can have 
huge computers that can process a zillion transactions in seconds 
and yet we can't quite get this done. Is it that the law enforcement 
people have not quite kept up with the pace of technology, or would 
it be better placed at the courts where they are more apt to have 
clerks that are more used to paperwork? Do we have it in the right 
place or is it everybody is so understaffed that it is the thing that 
falls through? 



27 

How do we make it simpler and easier; because if it isn't any 
good, it isn't worth spending the money on? 

Mr. Nemecek. I believe you have the focus in the right place. 
Some 20 years ago when I first became involved in this issue, we 
used to have the concern that courts, corrections, prosecutors and 
law enforcement all didn't do their part. Each of these components 
have to do their part and we have to pull the record information 
together. 

We seem to have made a lot of progress in breaking down those 
barriers, and probably the State Identification Bureau where you 
have the fingerprint-based identification, the expertise and the 
technology is the correct place to locate it, and what we have to do 
is to work on these channels of getting the other information — that 
is other than arrest data. 

We find that we have the majority of the arrest data. It is the 
conviction data. So it is bringing those linkages and getting the 
other agencies to pull it in. Frankly, it is an issue of priorities and 
resources, and certainly it is a tough issue these days. 

Mrs. Schroeder. Well, thank you very much, Mr. Chairman. As 
I say, as you watch this, if there are certain ideas you have for how 
we could better draft the bill, other than more money — but any 
other things, we could certainly use the input. 

Mr. Nemecek. Thank you very much. 

Mr. Edwards. Mr. Canady. 

Mr. Canady. I have just a few questions. 

About how many employment and licensing checks do you do in 
an average year? 

Mr. Nemecek. I don't have the figure for a year. The FBI's li- 
censing and employment checks vary, but approximately 50 percent 
of all of our inquiries now on our systems are licensing and employ- 
ment checks, which led to us actually establishing the fee system, 
because there is such a great increase in it. So I would say on a 
given day, via the submission of fingerprint cards, I would say per- 
haps 25,000 to 30,000 a day at the Federal level. This does not in- 
clude the additional ones at the State level. So there is a signifi- 
cant number that are being made and it is increasing each year. 

Mr. Canady. With respect to that $23 fee that is charged, how 
much of that covers the actual costs of doing the individual search 
and how much of that is used to support your automation efforts? 

Mr. Nemecek. I don't know that I have the exact figure. That 
changes somewhat. I believe about 80 percent of its goes toward 
just doing the tech search and the process. I think it is approxi- 
mately 20 percent to build this new online system that we are 
working on. 

Mr. Canady. In your testimony, you have expressed concern 
about records being disseminated to employers directly. 

Mr. Nemecek. Yes, sir. 

Mr. Canady. Do you believe that it is preferable that the whole 
record go to a State regulatory agency and that the State agency 
be then in the position to make the judgment on what is disqualify- 
ing and what is not? 

Mr. Nemecek. Yes, sir, absent any compelling reason to do other- 
wise, that is the standard way that licensing employment checks 
are done in this country. It places the review of trie record in the 



28 

hands of skilled individuals that are capable of interpreting various 
State's laws, determining what is a conviction, what is not, and 
then providing a decision whether or not there is a disqualifying 
basis. 

It does, as I indicated in my statement, provide some sort of 
standardization of interpreting the records and ensuring that the 
appropriate decisions are made. An argument could be made by 
someone that by seeing the actual record, they can somehow make 
a decision that deserves support. But generally, I don't see that 
being the case. 

The regulating agency's job is to regulate and to grant these li- 
censes, and I believe that is the appropriate place for it. 

Mr. Canady. Some people have suggested that a name check in- 
stead of a fingerprint check would be adequate at least as an initial 
screening mechanism, perhaps to be followed up by a fingerprint 
check. What would be your response to that approach? 

Mr. Nemecek. I guess my initial would be that for those that are 
honest and always tell the truth, it works just fine. To the extent 
that there is someone that has something to hide, in terms of their 
identity, then we are going to miss that check. That is why we 
have always stressed the importance of fingerprint checks as being 
the only positive identification. 

Another way of describing it is how much of a loaf do we want 
when it comes to protecting our children. It is not the complete loaf 
and it is not the best way to do these checks. 

Mr. Canady. You may have touched on this earlier, but what is 
the current response time for a fingerprint check? 

Mr. Nemecek. I indicated in my statement that it is approxi- 
mately 2 weeks. Depending upon resources, personnel, et cetera, 
this sometimes is 8 to 12 weeks after it arrives to the FBI. We find, 
though, that from State to State, these turnaround times vary 
widely, sometimes months, sometimes days or weeks, but there are 
tremendous disparities around the country, depending upon that 
State identification bureau's ability to respond. Generally speaking, 
when the State is charging a fee, they tend to get pretty good 
service. 

Mr. Canady. That is all the questions I have, Mr. Chairman. 

Thank you very much. 

Mr. Edwards. Thank you, Mr. Canady. 

I might add that the FBI and the Judiciary Committee move in 
this area very reluctantly, because the fingerprint criminal history 
system of the FBI was designed for the criminal justice system for 
fighting crime and for sentencing, and for other very important 
crime issues, and once they get started where civilian agencies and 
other private organizations feel that they are entitled to the crimi- 
nal histories, it does raise some real problems. So we have been 
guarded, and so has the FBI, in adding new groups that can get 
these criminal histories. 

It has to be a pretty darned important organization, with a very 
important need before we look upon it favorably, and you can see 
what has happened. This didn't start until just a few years ago and 



29 

already over half the requests are for licensing and for organiza- 
tions such as day care centers, banks, savings and loans, and peo- 
ple like that have the privilege of getting this information from the 
FBI. 

But when the issue is real, and we think this is a real issue, we 
think Mrs. Schroeder and the sponsors of this bill and Oprah 
Winfrey and others are correct, that we can't let what has been 
going on go on as far as child care centers. We move in that direc- 
tion, and the FBI has been cooperative, though it is a considerable 
additional burden to them. 

I have no questions. Thank you very much, Mr. Nemecek. 

Mr. Nemecek. Thank you, Mr. Chairman. 

Mr. Edwards. Our next witness is a personal friend of the Hon- 
orable Craig Washington of Houston, TX, who unfortunately could 
not be here today, but he sends his very best regards, Senator. He 
says he wishes he could be here and is very pleased that your ex- 
pert testimony is being received today. 

The next witness is the Honorable Vicki Miles-LaGrange, senator 
and chair of the Oklahoma Senate Judiciary Committee. She is tes- 
tifying for the National Conference of State Legislatures. 

Senator, welcome. 

Without objection your full statement is a part of the record, and 
you may proceed. 

STATEMENT OF VICKI MILES-LaGRANGE, SENATOR, OKLA- 
HOMA STATE LEGISLATURE, AND CHAIR, OKLAHOMA SEN- 
ATE JUDICIARY COMMITTEE, ON BEHALF OF THE NATIONAL 
CONFERENCE OF STATE LEGISLATURES 

Ms. Miles-LaGrange. Thank you very much. 

Good morning. On behalf of the National Conference of State 
Legislatures, and I am here in that capacity this morning, rep- 
resenting that organization as chair of the Law and Justice Com- 
mittee, we support the goal of improving criminal history records 
which are sought in this bill. Certainly, a nationwide criminal his- 
tory background check we believe can be very useful in the field 
of child care, as well as in other areas. 

I would like to just mention that I guess I am particularly sen- 
sitive to this area myself, personally. Before serving in the legisla- 
ture, I served as a State prosecutor and saw firsthand the very 
frightening toll that abuse exacts from our Nation's children. 

Let me speak very briefly to a cost issue that is a concern of 
NCSL. We believe that the cost of improving automation and dis- 
position rate of the State criminal history records is not calculated 
and may not be accurately reflected by the set-aside in the Byrne 
Memorial Fund and the additional $20 million which is in your bill. 
Certainly, the omnibus crime bill, the last session, authorized $100 
million annually to accomplish many of the same objectives. 

The bill reiterates the availability of funding under the drug con- 
trol system improvement grants and it offers this $20 million for 
automation. I don't know if it is really clear from the bill that the 
amounts through the set-asides and the additional grants were cho- 
sen based upon very specific cost estimates, showing the actual cost 
that a particular State might face over the next 3 years to actually 
comply with the mandate. 



Qn-finQ n - qa - o 



30 

One idea of those costs, just looking at my own State, the State 
of Oklahoma, where the estimate to actually consolidate criminal 
history records and bring them online in the automated fingerprint 
identification system would have a cost of $5.8 million over a 3- 
year period. The State of Oklahoma is currently under the 80-per- 
cent disposition which is required in the bill, but we certainly hope 
to improve very quickly and we are certainly working in that 
direction. 

Under the criminal history records improvement program, the 
State of Oklahoma has received another $176,000 for July 1992, 
through June 1994, to improve the accuracy, the completeness and 
the timeliness of our records. Just by comparison, some of the other 
States have much further to go in their process, and although we 
are unable at this hearing to really provide estimates, the National 
Conference of State Legislatures is certainly willing to work with 
the committee to try to obtain more accurate estimates of real po- 
tential cost to comply with the bill. 

We believe that criminal history background checks certainly can 
be useful, but it is also the position of NCSL that the criminal his- 
tory background checks are still only a part of what both the Fed- 
eral and State governments must do to ensure safe environments 
for our children. We strongly support this measure, and believe 
that there are excellent benefits to be derived. At the same time, 
we hope that we don't create any unrealistic expectations about the 
benefits to be derived from a nationwide criminal history back- 
ground check, expecting too much, if you will. 

I guess the whole tragedy of the child sexual abuse area that cer- 
tainly this bill seeks to address, and addresses very effectively, is 
that until we continue to concentrate very serious resources at both 
the State and the national level on child abuse prevention, we all 
are just only going to be scratching the surface, and in that respect, 
our organization supports the goals of the Child Abuse Prevention 
and Treatment Act. We hope that the Federal Government will 
continue its commitment to confronting and preventing this na- 
tional disgrace. 

As I mentioned earlier, Oklahoma, among many other States, 
has adopted mandatory fingerprints checks for some in the child 
care system, and I have for your perusal a State by State grid of 
those States adopting criminal history background checks and who 
has access to those records. 

Mr. Edwards. That will be made a part of the record also. 

[The information follows:] 



31 



STATE CRIMINAL HISTORY 

BACKGROUND CHECK LAWS 

(through December 31, 1992) 



Thi» Uble wit copyrighted in 1993 by the National Center for Miumg and Exploited Children, Arlington, Virginii, USA and 
reprinted from Selected Slate Legislation: A Guide for Effective La»i i.> Pirtc.t Children with permission. All right* reserved. 



32 



STATE CRIMINAL HISTORY BACKGROUND CHECK LAWS 
(through December 31, 1992) 



SMC 


Daycare 


— 


Foster Care and 
Residential Facilities 


Other Organizations or 
Individuals 


Alabama 


(26-20-1 T.V 


(26-20-1 T.V 


(26-20-1 T.V 


(26-20-1 T.V 




public or private child cart 




public or private residenuaJ 


anv organization providing i, 




center or child care home 




facility, intermediate or 
long-term care facility, 
correctional or detention 
facility 


service* to children ma> 
request 

ji 


Alaska 


112-3-2-18 E 




(12-3-2-18 E 


(12.62.035 E.V 




112-3-2-19 L 




(12-3-2-18 L 


anv o ream/anon providing 




child care center or home 




foster home or residenuaJ 
facility 


services to children ma> 
request 


\nzonm 


§33-883 02 child care center 


(28-11401 B 


(41-1750 adoptive parents 


(41-1750 E.V 




personnel 


(15-512 (15-534 


or custodians 


any organization providing i 




$33-883.03 child care home 


(15-1380 E.V 


(41-2814 E.V 


services to children may 




personnel. 




state secure care facility 

(14-160602 E 

state correctional facility. 


request 

(8-20301 state probation 

officers 

(8-230 02 (46-141 ail state 

personnel paid or volunteer 

providing service directly to 

juveniles. 


Arkansas 








(12-12.211 criminal hisiorv 
informauon made available 
only to criminal justice 
agencies and regulatory 
agencies with specific 
statuiorv access 


California 


Health and Safetv Code 


Education Code (44332 5 




Penal Code (11105.3 L.T.V 




(1596.871 L.E 


certified public school 




Human Resource Agencv. 




daycare facility 


employees. 

Vehicle Code (13376 B 
Education Code (44237 E 
private schools. 




nonprofit organization, or 
other organization tpccified 
by Attorney General mav 
request 

I 


Colorado 


§26-6-107 




119.1 (Ml 5 residenuaJ 


(19-10-115 day camp mav 




child care centers. 




lacilil? may request for 


require for emplovment 




pre schools. 




emplov ment . 


(26-6-107 Dept ma> require 




Dept. may require licensee 






for licensee 




to obtain. 










(19-10-115 child care center 










may require for 










employment. 








Connecticut 


(54-I42K Dept of Human 


(14-44 8 


1*4-142 Dept of Children 


(54-I42K convicuon 




Resources may request for 




and > ouih may request on 


informauon available to 




child care center or home 




k>»rme or lostcr parents. 


public: any organization 




licensee. 






providing services to 
children may request. 



KEY 

B » bus drivers 

E * all employees who have direct contact with children 
L ■ licensed owner, operator, or administrator of a facility, 
home, or organization providing services io children 



O = 4hrr\ «»*• hjve j*.- cess to children tn care 
T = ie*,net* • * rrrvmnel with supervisory control 
V = - .lunterrs 



33 



SUM 


Daycare 


_ 


Foster Care aad I Other Orgaautauons or 

Residential Facilities | Individuals 


Delaware 






1309 E.V 

residemial care facility. 

adoptive and foster parents 


. 
p 
1 

i 


District of 

Columbia 




Title 5 Chapter 10 DC 

Municipal Regulations E 




I 
i 

i 

| 


Florida 


&4023055 IM02.3I3 

LEO 

child care centers and 

homes 


5231 17 T 
certified personnel. 


1393.0655 J409I75 E.V 
residenual facilities and 
foster homes 


♦409 1 75 E.V 

summer day camps 


Georgia 


*4<J-5-*2 LE 

child care center? and 

homes 


449-5-1 II T 

political subdivision may 

require. 


f49-5-62 L.E 

child care institutions. 


♦49-5-11 T 

any organization providing 

services 10 children may 

require 


Hawaii 


$346-151 ft leq L.E 
child care centers and 
homes 


Dept of Education 
Personnel Policy Regulation 


4346-17 LE 
foster homes. 


1352-5.5 stall members of 1 
youth correctional facilities 

i 

1 

i 


Idaho 


539-1105 L.E.V 

child care centers and 
homes 






1 
i 


Illinois 


Ch. 23 para. 2214 1 L.E 
child care centers and 
homes 


Ch. 122 para. 34-185 E 
Ch. 122 para. 10-21° E 
Ch. 95 1/2 para. 6-106 1 B 




Ch 127 para. 55a any 
organization providing 
services to children may 
request 


Indiana 


J1M7J-J-J L 
child care center 
5IM" 5-5-3 L 
child care home 
S5-2-5-5 E.V 
child care center or home 
operator may request 


i 
i 
1 

i 
1 





KEY 

B = bus drivers 

E x all employees who have direct contact with children 
L = licensed owner, operator, or administrator of a facility, 
home, or organization providing services to children 



O s .<ih«T\ *rn. have access to children in care 
T = leja-her-. .»r personnel with supervisory control 
V = t.Huniecrs 



34 



State 


! 

Daycare 


Schools Foster Care and 

| Residential Facilities 


Other Organizations or 
Individual* 


Iowa 


$237A5 L.E.O 
child care faciliry 




1237.8 L.E.O 

foster care facility 
II25H.7 LEO 
medicaJ msuuition for 
children 


»w:.: e.v 

youth service agency 
approved bv Commmioner 
of Public Safety, may 
request 


Kansas 


*65-5lh E.V.O 
child care home 




$65-516 E.V.O 

boarding home for children 


1 

1 

1 

i 


Kentucky 


§17-165 T 
child care centers 


5160 380 T 
public schools 




$17,160 T 

any organization providing 

services to children may 

request 


Louisiana 


$46:51 : TV 

child can: centers or homes 


117:15 E.B 


$15:825.3 L.E 

juvenile detention 

correction, or treatment 

facility 

$46 51 2 LXO 

foster home. 


1 
$15 587 1 T 

any organization providing 

services to children ma> 

request 

$46:51 2 TV 

any organization thai Oept 

of Public Welfare determines 

has authority over children 

nuv request 

i 


Maine 

1 


Tit. 22 98301 L.O 
child care homes 






Tit. 16 $615 convicuon |j 
informauon available to the 
public 


Maryland 

1 
i 


FL 1.5-561 L.E child care 

centers 

V child care centers may 

require 

L.E.O child care homes 


FL §5-561 E public and 
private schools 
V public and private 
schools may require 


FL $5-561 L.E child care 

institutions 

V child care institutions 

may require 

L.E.O foster homes 


il 

FL 55-561 E an> 

organization providing 

services to children may 

require 

L.E sute recreation centers 

and day or overnight camps 

V state recreauon centers 

and day or overnight camps ; 

may require. 

il 


. Massachusetts 

1 
| 


102 CMR 7 00 L 
child care centers. 


Ch *> 08A B 


il 

i 

1 


Michigan 




i 


Hi :49i|3i all persons in 
house McCrutf House 


Minnesota 


S245A03 L.E.O 
child care ceniers and 
homes 


J245A03 L.E.V.O S245A.03 LX.V.O 

public and private schools j residential facilities. 


I245A.03 LE.V.O 

recreation programs 

I 



KEY 

B = bus drivers 

E = all employees who have direct contact with children 
L = licensed owner, operator or administrator ol a taciltry. 
home, or organization providing services to children 



O s •inm »*.> njve access to children in care 
T = iejk nen. ••* personnel with supervisory control 
\ = wiunteerv 



35 



Sum 


Daycare 


Schools 


Foster Care and 

Residential Facilities 


Other Omaniiai ions or 
ladividiiab 


Mississippi 


♦43-20-8 L.E 
child care centers 

(4!-:0-S LEO 
child care homes 


§45.31-1 «ie« E.V 
any unit of gov thai renders 
services to children may 
request 


$45-31-1 ttttq, E.V 

an authorized business, 
nonprofit or volunteer 
organization, and any unit 
of gov that provides 
services to children may 
request. 


445-31-1 et teq. an 
authorized business, 
nonprofit or volunteer 
organization, and any unit ot 
gov that provides services 
io children may request 


Missouri 


H3540 E.V 

child care centers or homes 

may request. 


J43 540 E.V 

public or private school may 

request 


443.540 E.V 

foster care home may 
request 


443-540 E.V 
an> association which 
provides services to children 
may request 


Montana 








I 

1 


Nebraska 


571-1903 LE.O 
Dept. of Public Health and 
Safety may require for early 
childhood programs 


Nebraska Dept. of 
Education Rule *9I 
004.0 IF 

recommended for bus 
driven. 


§71-1902 LE.O Dept. of 
Public Health and Safery 
may conduct for foster 
homes 


t 


Nevada 


H32A.I70 LX.V.O 
child care facility. 


JI79A200 E 
gov. agency or political 
subdivision may request 
1391033 T 
$391,100 E 


4424.031 LI.O 
foster homes. 


J179A200 E 

person providing services to 
children may request 
II70A.I75 L.E.V.O 
outdoor south program 


New 

Hampshire 


II70-E7 E 

child care centers and 

homes. 




4170-E29 E 

foster homes and residential 

facilities. 




New Jersey 


PL. 1991 ch. 278 LE.O 
family daycare homes. 


|l8A:6-il3 E 
nonpublic school may 
require. 

II8A390I7 B 
J18A6-7I EB 
public schools. 






New Mexico 


J32-9-J LE 
child care facilities. 


128-2-3 E 

state or any political 

subdivision may require. 


432-9-3 L.E juvenile 
detention, correction, or 
treatment facilities 
528-2-3 E 

viate or political subdivision 
mj\ require. 





KEY 

B = bus drivers 

E 3 all employees who have direct contact with children 
L ■ licensed owner, operator, or administrator of a facility, 
home, or organization providing services to children 



O = others *n«< have access to children in care 
T = iej»,her\ or personnel with supervisory control 
V = vntunieers 



36 



z 



Hatbrmaat Facaaaaat 



Otarr OrnauMMM ar 
Indxidaub 



Social Services Code M>j 
LXV 



Vehicle an 
»SO»-d ■ 



I T." . 



Social Services i.xx 
lower homes and aoocmr 



Social Services Ccoc M24-i 
L.E-* camp> 



tllO-UO I 

child care centers and 



♦JO-ll i-OJ LE.0 



(»l! I-0a: lisunt in 
child care rerisirv n 
loawir. *.n\ person mav 
venrv it a care provider b 
■Baal 



I I5ICU09 LE 
OHM C it GH HH 
4510* 09 LE.O 
dkld care nomev 



Tu 10 *404 l E 

CHI EMI DBWL ' v" » "V "~J > 



Tit ?0 I5-U2 E 

rocaj Board of Educanoa 

-j • request 



Tu 10 H04 l E 
rrsioeticiAi child care 
racit.rt 



WIS 820 Lt\0 
rru\ be required lor child 



§242-550 may be required 
for cusaoduos « pubiK 
nook 



H1S82C LE 
juvenile deaesoon. 
ciMiCLUon. or creatmeni 
facility 

(181 53 7 ma* be required 
for adoptive parent*, rosier 
care homes, or state 
residential taci lines 



?rr. Mil 1 



Ttr. 23 M>.U4 E 



Til 24 Jl-Ill E 

PuMk and private schocJv 



T,i I? *6.U4 

toster care homes and 

adoptive parents 



T I ;.• w.vu E 

anv ortaruzauon providing 

services to children 



MO-13-22 LE 
child a 



jlo-48-2 pnvaar schcoii 



Saath Carotaaa 



130-7-rTJO LE 
ejl ■ cat. cer-c-s 1.1: 



IW-26-40 T 
public schools 



Saath Dakota 126-0-149 LXO 

child can home mas 
request- 



KEY 

8 * bus drivers 

E x ail empsovees who have direct contact »iih children 
L = licensed owner, operator- or admimsiraior of a tacilirv. 
home, or orearuzaoon providint services to children 



;> = aai 
T * e* 
\ ■ 



• r». ftjve access to children in care 

• • » personnel »ith supervisory control 



37 



Stat* 



Foster Car* and 
ReudenuaJ Faculties 



<Hh*' C 
ladi*»duaii 



449- 5-406 T 

muw discio-e background 



I37-I-4M 
§7l-J-529 E 
adoptive parents foster 
nome; and residential 

faciiiuei 



Human Resources Code 
»22-U06 LEO 

child care centers and 
homes mav require 



Educ Code §21 914 E 

puonc schools 

111.064 E 

School for the Blind 

§ 1 1 J>33 E 

School for the Deaf 



Human Resources Code 
62: 006 fouer homes and 

adoptive parents ma - 
request 



Human Resource- Cuue 

*80 00 * tool ia* 
enforcement mav obtain on 
rtesffhoornood child *atcn 
program parucipanu and on 
VicGruff H Aj-rf resident* 
122-006 ma> require lor 
Bif Brothers. B>e Sisters 
Home Hcaj'Jt Care 
Providers, and cour- 
appointed special advocate* 
'CASAt lor aouied or 
neglected children 



I53A-3-II0 E.V 
School Board mav require 



»63 1-198 LO 
child care centers and 



♦63 1-198 1 E 

licensed child care centers 

and homes 

♦63 1-198 2 E.V 

unlicensed facility may 

■fM 

163 1-196 04 voiumarv 

registration of small family 

davcare homes 



122 1-296 2 E 



*63 1-198 1 

foster homes and adopuvt 



Washington 



f*3 4?830 E.V 
child care centers and 



443 43 830 noncerufied 

personnel 

I28A70 140 certified 

p ersonn e l 



443 20A 710 state 
employees in positions 
responsible for supervisi 
*.an. or treatment of 

fc h ( idren 



443 43 830 E.V 
am orcamaation thai 
provides services to ch il d r en 
younger than the age of 1 6 



West V 



449-2B-8 U£ 
child care cemers 



(15-2-24 tov acencKr 
may receive informal mwi 
from crirranaJ *demif»*.ai»in 



vjw :b i LE 

private residential facility 



155 06 L 

child care c en te rs i 



(55 06 L 
day camps 



KEY 

B ■ bus drivers o 

E * ail employees who have direct contact with children T • 

L ■ licensed owner, operator, or administrator of a laciliry \ - 

home, or ortanuauon providing services to children 



•*- * % *j*r access to children in care 
rat*rr* <n rr«-«inel with swrjernsors control 



38 

Ms. Miles-LaGrange. I would like to make just another com- 
ment and then I will wind up and will be happy to try to respond 
to questions. 

I mentioned those additional things that are going to be abso- 
lutely necessary if we are going to ever really effectively squelch 
chila abuse across this Nation. In Oklahoma, we have taken a 
number of steps that actually parallel the goals of the National 
Child Protection Act. 

For example, applicants for family day care are checked against 
the department of human services child abuse registry. Then there 
are four references required for staff and day care centers. Then 
staff and centers must have training on the mandatory reporting 
of child abuse. Then parents are additionally informed through an- 
other publication on how to detect and report suspected abuse and 
parents are encouraged to examine the child care provider's licens- 
ing files, which are open records. 

As I mentioned, we have recently amended our law there to man- 
date criminal background checks for applicants for employment in 
both day care centers and family day care homes. And that back- 
ground check may include a search of the department of corrections 
sex offender registration file, and currently those checks are by 
name. 

Teachers can undergo a national fingerprint check through the 
FBI. However, the records from the FBI that our State currently 
relies on for checks may only have a 50- to 60-percent disposition, 
because, for the most part, tne States must submit the information 
to the bureau before a disposition can be made. 

We are very encouraged by both the spirit and the intent of H.R. 
1237, and I cautiously say that by targeting only a fraction of the 
problem of child abuse, we don't want to risk over promising, be- 
cause even at the target of 80 percent, final disposition in this bill, 
as we all know, that remaining 20 percent would pose a risk. But 
more importantly, I think it is crucial to bear in mind that many 
of those who will abuse children do not necessarily have prior 
criminal records. 

In closing, I would say that we applaud the fact that the use of 
background checks for noncriminal justice purposes is permissive. 
Certainly the bill creates requirements in the language of the pro- 
posed guidelines that in at least some instances may hinder the 
flexibility of States to respond to their particular needs. 

With that, I will stop and try to respond to questions. 

Mr. Edwards. Well, thank you, Senator. That was a very helpful 
statement. 

[The prepared statement of Ms. Miles-LaGrange follows:] 

Prepared Statement of Vicki Miles-LaGrange, Senator, Oklahoma State Leg- 
islature, and Chair, Oklahoma Senate Judiciary Committee, on Behalf of 
the National Conference of State Legislatures 

Good morning. My name is Vicki Miles-LaGrange. I am the Chair of the Okla- 
homa Senate Judiciary Committee. Before serving in the legislature, I served as a 
state prosecutor and saw first hand the frightening toll that abuse exacts from our 
nation's children. These experiences have come together in my service as a member 
of the Oklahoma Senate. Since elected in 1986, I have sponsored a variety of bills 
aimed at improving the safety of our children. This year we made mandatory the 
requirement that criminal investigations be conducted for certain personnel in the 
child care setting. 



39 

I come before you on behalf of the National Conference of State Legislatures, 
where I serve as chair of the Law and Justice Committee. My purpose here today 
is to bring my experience as a legislator and the perspective of my colleagues to 
offer insights and raise questions about H.R. 1237, "The National Child Protection 
Act of 1993." 

The bill that is the subject of this hearing contains ideas that have circulated for 
a decade. Background checks are seen as one way to reduce the risk that dangerous 
persons will volunteer or be hired to work with children away from home. Mean- 
while, states have been active in implementing some of the ideas in the bill. State 
responses have varied, though, from requiring fingerprint-based background checks 
for a broad variety of persons in contact with children, to voluntary name based 
checks for a limited pool of applicants. The trend is toward expanding the use of 
background checks. 

In our testimony, we first raise questions about the scope of the mandate and the 
adequacy of the funding authorized under this bill. We then stress that parts of the 
bill that are intended to be permissive should avoid hidden mandates that are not 
necessary to further the purposes of the bill. I will share some of my experiences 
in Oklahoma to explain how we are responding to some of the needs of our children. 
We believe that the common interest in creating a national network to share infor- 
mation is consistent with federalism, but that states should retain authority over 
the use of information within their borders. Sketches of the actions of several states 
will bear out the distinction between national interest and state interest. Finally, 
we will offer a few suggestions section by section to assist the committee in crafting 
legislation that respects the ability of states to be responsive to their constituencies. 

MANDATES AND FUNDING 

This bill reinforces the trend by states to use criminal history data to reduce risks 
to children cared for out of the home. The method of reinforcement is to mandate 
that states create criminal history data bases that are at least 80 percent accurate 
in showing the final disposition of cases for persons arrested. The bill also encour- 
ages automation of criminal history records and develops guidelines for states to use 
in processing nationwide criminal history background checks for non-criminal jus- 
tice purpose relating to the out-of-home care of children. 

Improved national criminal background checks can have significant benefits in 
law enforcement. By providing an impetus for the improvement of state records, this 
bill serves a useful purpose. And, states will see the benefit in expanding the net- 
work of cooperation by tracking child abusers that move from state to state to avoid 
detection. 

These laudable goals should become national policy, however, only after the na- 
tional government expresses its commitment with satisfactory and stable funding. 
In order for sound policy to emanate from Washington, much greater attention 
needs to be given to the costs that will be passed to the taxpayer. NCSL has led 
the way in educating Congress and the public about the perils of unfunded man- 
dates. Mandates cause civic impairment by separating decisions to spend from deci- 
sions to tax. Citizens are uncertain which level of government to reward or blame, 
and accountability in government suffers. 

This bill does offer some funding. However, if the level of funding is reflective of 
the commitment of the federal government to seeing the nationwide check become 
a reality, we remain skeptical that this will be a true partnership. We urge the com- 
mittee to confirm the national commitment to the success of the program by making 
the mandate effective only upon full appropriation of an adequate level of funding. 

The bill reiterates the availability of funding under the drug control system im- 

Brovement grants, and offers an additional $20 million in funding for automation. 
Unfortunately, it is not clear from the bill that the amounts through the set aside 
and the additional grants were chosen based upon specific cost estimates showing 
the actual cost states would face over the next three years to comply with the man- 
date. One idea of those costs may come from my own state, where it is estimated 
that to consolidate criminal history records and bring them on-line in an automated 
fingerprint identification system (AFIS) will have cost $5.8 million over 3 years. We 
are currently under 80 percent disposition but hope to improve quickly. Under the 
Criminal History Records Improvements Programs (CHIRP) we have received 
$176,500 for July 1992 through June 1994 to improve the accuracy, completeness 
and timeliness of our records. Other states have farther to go. Although we are un- 
able at this hearing to provide estimates, we would be willing to work with the com- 
mittee to try to obtain a more accurate estimate of potential costs. 

The uncertain federal commitment in H.R. 1237 is also suggested by the amount 
authorized for similar purposes in H.R. 3371, the Omnibus Crime Control Act of 



40 

1991, which did not become law. Section 503 would have authorized $100 million 
for fiscal year 1992 and all fiscal years thereafter. Under Title V of the 1991 crime 
bill, the federal government authorized the funds in order to permit nationwide 
background checks for persons seeking to purchase firearms. Although the users of 
the system are certainly different than those proposed in H.R. 3371, the goal of im- 
proving state criminal history records to make nationwide background checks fea- 
sible was similar. Language of H.R. 1237 echoes much of the language creating the 
national criminal background check system in Title V of that crime bill. 

Another part of the federal commitment has been the continuous effort of the Fed- 
eral Bureau of Investigation to develop the Interstate Identification Index. This 20- 
year effort to enhance cooperation between states and the FBI has moved to the 
stage where the Attorney General is reviewing a compact that will regulate com- 
prehensively the use of criminal history records for non-criminal justice purposes. 
While developing a system for the purposes of non-criminal justice background 
checks, we should see how the needs of child care providers can be integrated into 
the Interstate Identification Index. 

NCSL normally objects to set aside programs in grants that are intended to give 
states flexibility in developing individualized responses. The drug control system im- 

firovement grants are such funds. A case can be made that the set-aside here is 
inked to the development of a national program that requires significant levels of 
uniformity in order to be successful. However, the problem with earmarking is that 
it assumes uniform needs, and while states all need assistance, their needs are not 
uniform. 

The bill would withhold funds from states that are not able to meet guidelines. 
This provision should be considered cautiously, not automatically, as it may have 
unintended consequences. States are ultimately responsible for fulfilling all obliga- 
tions, yet the individuals responsible for compliance here may be jeopardizing pro- 
grams funded with the Byrne grants that are not delinquent or responsible for the 
delay. Congress has authorized funds in the past for improvement of criminal his- 
tory records, and then removed the support. Senator DeConcini and Congressman 
George Miller sponsored legislation in 1984 to appropriate $25 million to encourage 
states to require national background checks, but the next year funding was 
dropped. In other programs, Congress has decreased funding for automation by re- 
defining the expenditure as an administrative cost. We therefore caution that uncer- 
tain financial commitment can jeopardize implementation. 

We believe that the imperative of stable funding from the national government 
must be met with responsible and ready cooperation from the states. It is essential 
to the process of state funding that state legislators become better informed about 
the nature of the program and existence of the federal commitment. 

FLEXIBLE STATE REGULATION 

We are encouraged by the fact that the bill has not attempted to mandate uniform 
requirements regarding who may request records checks. The language of Section 
3 — "A State may have in effect procedures to permit" — thankfully allows states the 
option of determining what organizations will have access to criminal history 
records. However, the specificity of the guidelines set out in the bill may be unneces- 
sary to accomplish its goals. Because background checks are not a cure-all, it is even 
more important that states retain flexibility in determining priorities even after 
records are improved. 

The federal government must consistently give states the tools for children's safe- 
ty and maintain this commitment through the appropriations and regulatory proc- 
esses. Under federal child care legislation passed in 1990, states retain the author- 
ity to regulate child care. 

However, during the regulatory process, restrictions were placed on the ability of 
states to impose additional requirements, such as background checks, on unlicensed 
and unregulated providers. In September 1991, my colleague from Oklahoma, State 
Senator Bernest Cain appeared before the House Ways and Means Subcommittee 
on Human Resources to protest regulations that made national administrative pref- 
erences for "parental choice" the predominant factor in state regulation of child care. 
According to Senator Cain, who testified on behalf of NCSL, "Current state safety 
requirements such as fire extinguishers, smoke detectors, criminal background 
checks, tuberculosis tests, and safety inspections may all be jeopardized." This bill 
should reaffirm that states retain the right to authorize criminal background checks 
where needed. 

States that have provided statutes to the FBI for 92-544 clearance permit some 
disclosure. Some states, however, have a greater sensitivity to issues of privacy than 



41 

others. Under the Constitution, they are permitted to enhance those individual pro- 
tections. This legislation should studiously avoid allowing regulatory preemption of 
state privacy laws. States have legitimate reasons to respond to constituencies that 
demand privacy rights or fear discrimination, and thus limit the disclosure of their 
criminal history records for non-criminal justice purposes. 

Another reason for leaving states with flexibility is that the use of criminal his- 
tory background checks is only a narrow part of the solution to providing quality 
care for children. We should not set ourselves up for disappointment by expecting 
too much of criminal history records. Unfortunately, the tragedy of child sexual 
abuse that this bill seeks to address will continue unless we concentrate serious re- 
sources at the state and national level on child abuse prevention. The National Con- 
ference of State Legislatures supports the goals of the Child Abuse Prevention and 
Treatment Act and believes that the federal government should renew and expand 
its commitment to confronting and preventing this national disgrace. 

LESSONS FROM OKLAHOMA 

In Oklahoma, we have taken a number of steps that parallel the goals of the Na- 
tional Child Protection Act. Applicants for family day care are checked against the 
Department of Human Services child abuse registry. Four references are required 
for staff in day care centers. Staff in centers must have training on the mandatory 
reporting of child abuse. Parents are informed through a publication on how to de- 
tect and report suspected abuse. Parents are also encouraged to examine the child 
care provider's licensing files, which are open records. 

We also recently amended our law to mandate criminal background checks of ap- 
plicants for employment in day care centers or family day care homes. The back- 
ground check may include a search of the Department of Corrections sex offender 
registration files. As yet, these checks are by name. Teachers can undergo a na- 
tional fingerprint check through the FBI. The benefit of the name check is that it 
is less costly and more timely than a check through the FBI, which can take weeks 
or months. The records from the FBI that we now rely on for checks may have only 
a 50-60 percent disposition, because for the most part the FBI must rely on states 
to report the dispositions. 

Thus, we should be wary of expecting too much from H.R.1237. By targeting only 
a fraction of the problem of chila abuse, we risk overpromising. Even at the target 
of 80 percent final disposition in this bill, the remaining 20 percent would pose risk. 
But more importantly, it is crucial to bear in mind that many of those who will 
abuse children do not necessarily have prior criminal records. 

In January 1990, the Joint Legislative Advisory Task Force on Child Care issued 
its report, "Building Better Child Care in Oklahoma." As a member of the Task 
Force I became well acquainted with massive demographic changes that rapidly ex- 
pand the need for services for children outside the home. The conclusion of the Task 
Force was that "[t]he single most important factor that will increase the quality of 
care for children in child care facilities is the training of the child caregiver. 

Related to training and to the issue of obtaining background checks is the fact 
of substantial turnover in the child care field. We found in Oklahoma that "[i]n any 
given year, 42 percent of the staff in early education and child care programs and 
59 percent of providers in family day care homes will leave the field." Although the 
overwhelming majority of employees take these jobs because of their sincere concern 
for and love of children, most are paid minimum wages with no benefits. One effect 
of the turnover is that employers need to have the ability to hire promptly in order 
to maintain quality that comes from even minimal staffing. A more significant effect 
of the turnover is the toll on the children. While infants and toddlers have special 
needs for stability, the child often faces adjustment to two or more caregivers in a 
year. 

We ask that members of this committee continue to recognize that each state 
struggles with the best way to protect its children while providing affordable care. 
Passing the costs of the checks on to the clients makes child care inaccessible for 
some. When we mandate safety precautions from fire exits to child/staff ratios, we 
are always confronted by cost issues. Although some of our decisions are made easy 
because the costs are minimal compared to the risks entailed, others do not come 
easily. 

Even though the cost to conduct the search may be borne by the applicant under 
the bill, volunteer organizations that are compelled to conduct the background check 
could find that cost unacceptable and thus pass the cost along to the volunteer. The 
potential volunteer that is recruited to give a valued few hours each week, may feel 
that a criminal background check is insulting, costly, or too much trouble to pursue. 
There is always the possibility that unnecessary requirements could have a chilling 



42 

effect on perfectly able and energetic volunteers who are needed to fulfill community 
needs. That is why it is important that the bill leave the choice of requirements for 
background checks to the states. 

It is in these difficult debates that the value of federalism is most pronounced; 
as states, we can innovate without putting the nation at risk. The principle of re- 
serving power to the states can reinvigorate accountability and responsiveness in 
government. 

STATE ACTIONS RELATIVE TO BACKGROUND CHECKS 

The national interest in supporting the accuracy of the nationwide check is fur- 
ther underscored by the fact that nearly every state uses the FBI search for clear- 
ance of persons entrusted with money, property or people. According to the Federal 
Bureau of Investigation, 31 states now have laws that allow some entities super- 
vising children to seek fingerprint background checks. In order for a state to partici- 
pate in this program, it must submit an authorizing statute to Attorney General for 
approval. 

Allowing states to choose to initiate various safety precautions including back- 
ground checks is an important way for states to remain responsive to their constitu- 
encies and to innovate. On the other hand, consistent movement toward allowing 
nationwide background checks suggests the national interest in each state's reach- 
ing for a national disposition rate and standard of automation. The brief look at the 
states represented on this committee shows the variety of approaches to security for 
children cared for away from home. 

In the chairman's state of California, the background check system has been in 

Silace for twenty years for public school teachers. California does fingerprint checks; 
or those residing in the state for more than 3 years an in-state search is done, oth- 
erwise the FBI search is also completed. Although California is largely automated, 
it places its disposition rate at 50 to 60 percent. With 550,000 applicants in 1992, 
the state raised $17,600,000 in revenue. 

Massachusetts does not yet authorize the use of FBI checks but there is legisla- 
tion pending to require background checks for some purposes. Right now, licensed 
day care is required to do background checks as a condition of licensure, but these 
are only name checks. 

In North Carolina, a bill now in committee would mandate fingerprint criminal 
record checks of child day care providers and their spouses. Currently, the state is 
prepared to do only name background checks, as it does for teachers at the discre- 
tion of school districts. North Carolina charges $14 for a fingerprint check and does 
not consider it a revenue raiser. This state's disposition rate is near 90 percent. 

Following the pattern of other states, North Carolina is taking other measures to 
improve the quality of child care. In the most recent session, it strengthened the 
ability of inspectors to make unannounced visits at centers, clarified revocation of 
licenses and improved fire prevention standards. 

Florida, which has an open records law allowing private citizens to ask for a name 
check, is a pilot state for the National Fingerprint Pile project being developed by 
the FBI as the next step beyond the Interstate Identification Index. Florida has au- 
thorized criminal background checks for child care personnel since the early 1980's. 
It has authorized FBI fingerprint checks for child care facilities, mental health fa- 
cilities, treatment personnel including volunteers for alcohol and drug abuse treat- 
ment for minors and juvenile delinquency personnel. School boards retain discretion 
whether to require background checks for volunteers, cooks and other persons. For 
teacher certification, Florida charges a $15 fee on top of the FBI's $23 fee. The state 
check can now take eight to twelve days, and the federal fingerprint check can add 
a couple months to the process. 

Texas, like Florida, allows its Department of Human Services to do national 
checks on owners and employees of child care facilities, residents of registered fam- 
ily homes, persons providing adoptive or foster care for children in the custody of 
the department, volunteers in Big Brother/Big Sister programs and more. A recent 
Texas law allowing criminal background checks for volunteers will create substan- 
tial new costs and pressures because of the possible burden of thousands of new re- 
quests. Under the law, the Texas Department of Public Safety has authority to pro- 
vide background data to one volunteer agency in Dallas that refers 66,000 volun- 
teers to 760 agencies. 

Dlinois provides for name checks and fingerprint checks. Illinois has authorized 
national checks for child care licensees, school district employees, bus drivers and 
private adoption applicants. The fees range from $5 to $10 and are not considered 
a revenue raiser. 



43 

Colorado also has name checks for private citizens to use, and fingerprint checks 
for certified teachers and day care personnel. The fingerprint checks include na- 
tional checks of applicants for a license to operate family care homes, residential 
child care facilities, child placement agencies and child care centers. Convictions of 
violent or sexual offenses, drug sales, or an offense which as an "adverse reflection" 
on the individual may bar child care employment. 

New York does not do name checks, but has moved toward the Automated Finger- 
print Identification System. The checks cost $25 plus a $25 surcharge in addition 
to the applicable FBI fee, which is $23. The FBI currently is authorized by state 
law to provide background checks for school bus drivers and attendants, as well as 
for employees of the New York City school system. 

As illustrated above, states show a range of choices in the structure of their back- 
ground checks, the populations covered and fees. States with large urban popu- 
lations such as New York and California may opt to charge higher fees that offset 
expenses from a high volume of applications and from greater computer memory re- 
quirements. As each state moves to improve its program and to add persons to the 
list of those being checked in the nationwide system, the federal government, 
through the FBI must be prepared to respond promptly. 

SECTION BY SECTION COMMENTS 

The following comments are made to assist the committee in crafting a better bill. 
In general, principles of federalism — accountability, innovation and responsive- 
ness^ — should deter the committee from regulating the details, where goals and ob- 
jectives can be achieved by alternative means. 

SECTION 2 

The Attorney General is given authority to investigate "the records" in each state. 
What is probably meant is that authority is given to investigate the system, other- 
wise this seems to be a rather staring reach of federal authority into state records 
for non-criminal justice purposes. (bX 1XA). 

Asking states to have an "on-line capacity" is not clear. Although the context 
seems to suggest that states are able to participate in retrieving information, the 
law should make clear that only those criminal justice agencies authorized to dis- 
seminate and collect information are expected to be on-line, and then only to the 
FBI. (bXIXA). 

The Attorney General is given plenary authority to establish guidelines for report- 
ing and indexing information. (bXD(B). The law should make explicit that these 
guidelines are to be prepared in consultation with states. Specifically, representa- 
tives of legislatures and courts as well as data repositories should be included in 
the process early to improve chances for success. Final disposition relies upon infor- 
mation provided from a variety of sources, including law enforcement, prosecutors, 
courts and correctional facilities. 

Also, the bill should perhaps take cognizance of the fact that significant work has 
begun on this issue by the Advisory Policy Board as they move toward a national 
fingerprint file. The issue appears less complex on paper than is actually the case. 
Sufficient consideration should be given to the costs of harmonization as states may 
be required to change much of their record-keeping. 

Under (bX2XA), states are given 3 years to have an 80 percent disposition rate 
in computerized records on child abuse crime cases. How does this harmonize with 
the need for accurate disposition on all background check crimes? The statute de- 
fines them differently. Presumably, for the system to be effective, all background 
check crimes must have the requisite disposition. That is why the cost of making 
the system work must include more than the narrow focus of child abuse offenses. 

Research should be targeted for use by state policy makers. The study of child 
abuse offenders to be done by the Office of Juvenile Justice and Delinquency Pre- 
vention should be interdisciplinary, not neglecting issues of health, mental health 
and education. 

SECTION 3 

Section (a) mandates that agencies respond promptly. We urge avoiding language 
that could encourage disputes, unless there is substantial evidence to suggest that 
agencies do not respond promptly to requests. Remember that failure to respond to 
a noncriminal justice inquiry can be caused by criminal justice demands on the sys- 
tem. The bill could unintentionally cause legal disputes over the priorities given law 
enforcement and other users of the system. 



44 

Also, we would be concerned in section (a) whether the permission to determine 
convictions and provide that information would by negative implication prevent 
states from acting on information that does not show a conviction. Again, we expect 
that the effort to grant states authority that they already have ana are exercising 
regularly may end up with the unintended consequence of prohibiting state prac- 
tices intended to increase the security of children. For instance, would a state be 
prevented from acting on a person who is on pre-trial release or diversion programs? 

This section becomes quite detailed. We urge that Congress not include the man- 
datory language throughout the guidelines, especially because the use of the system 
itself is permissive. Perhaps states will develop different approaches to providing ac- 
cess to the system for persons with different levels of supervision of children. 

Guidelines of the Attorney General should only be made in consultation with state 
policy makers, and not merely with criminal justice or child care specialists. 

Under (C) the agency is to respond within 15 days. This mandate may not be fea- 
sible in some instances. The delay may not necessarily be from the state agency. 
They should not sacrifice accuracy and thoroughness to speed. Different applicants 
might also have different priorities within a given state. The bill should not lock 
states into arbitrary and unnecessary requirements. 

Section (DX2) prevents the report of the authorized agency from being the sole 
basis for determining the fitness of the provider. Some states might prefer to have 
the flexibility to assume that after going to the trouble and expense of making the 
national background check, one should be permitted to act on that information. 

Under section (E), the details may not need to be set forth in this legislation. Dis- 
putes may arise between the authorized agency and the entity seeking to qualify 
a provider. If entities are not given full information, then the judgment of what is 
necessary to fulfill the purpose of the Act is left with the criminal justice agency. 
Because there may be legitimate and useful distinctions regarding the amount of 
information necessary, states, and not the Attorney General, should be given flexi- 
bility to make such decisions. 

Under (F), an entity may choose to deny unsupervised access until determination 
of validity or the provider has waived the right to make a challenge. The language 
of the statute, however, does not seem to leave the entity the right to deny employ- 
ment once the validity is called into question or the waiver is not granted. This 
seems to put the hiring agency in a bind. The language should ensure that all rea- 
sons valid under state law not to hire a person are still valid. Again, the existence 
of contending values suggests that the federal guidelines should be limited, or that 
the states should be given flexibility in this area. 

Section (bX2)(I) limits liability where an adverse decision is made on a provider. 
What controls the liability where a decision is made on incorrect information pro- 
vided from the system where the decision is favorable to the provider? 

SECTION 4 

Section (b) The statistic to be followed by the Attorney General to determine sup- 
plemental grants is identifiable child abuse cases. Yet the act has separate defini- 
tions for child abuse cases and for background check offenses. The nationwide check 
used is to identify more than child abuse cases promptly. 

Section (c) allows the Attorney General to penalize states that have not kept with 
the timetable of the act. The power to penalize takes effect within one year, but the 
timetable under section 2 of the act allows states three years to achieve 80 percent 
disposition. The Attorney General, however, has 180 days to work out a time line 
with the states. States face potential penalties even though the federal delay may 
be partially responsible for the failure to meet deadlines. The best way to ensure 
that states meet mandated guidelines is to fully fund the program. Therefore, no 
penalties should apply unless and until the authorized funding is fully appropriated. 

SECTION 5 

"Background check crime" should be flexible to meet state definitions. A minimum 
level can be set to provide some uniformity, yet some states may wish to include 
other offenses that warrant attention. Listing specific crimes that may be predictive 
of bad behavior may be interpreted as a limitation. 

"Child care" definition seeks to be inclusive, but can bring the usefulness of the 
act down under its own weight. States have experimented with a variety of defini- 
tions concerning what level of care is deserving of fingerprint background checks. 
Adding volunteers can add significant costs. By applying the same guidelines to all 
state statutes allowing release of information, states lose the flexibility to determine 
which volunteers are in a position sufficiently responsible to request background 
checks. 



45 



CONCLUSION 



The National Conference of State Legislatures shares this committee's concern 
that the care of our children is a major priority. Innovative solutions should be tried 
to arrest instances of abuse that threaten their well-being. In shaping these solu- 
tions, it is still necessary to respond to the taxpayers and to inform them of the real- 
istic benefits. As legislators, we should respect the principle of funding our promises. 
As actors in the federal system, we can build a safer country while respecting the 
benefits of allowing states the right to be innovative and responsive. 

Mr. Edwards. I think it is very important, one point you made 
in particular, which is that because a child day care center has an 
applicant who does not have a criminal record, that doesn't mean 
that it should substitute for a careful investigation of this person's 
background through references all other ways of investigation, be- 
cause that is certainly not definitive, that the FBI does not have 
a criminal felony record of an individual. 

Mrs. Schroeder. 

Mrs. Schroeder. Thank you very much, Senator. 

Your testimony, as I knew it would be, is very helpful. We are 
pleased that you are supportive and that NCSL is supportive, and 

thank you. 

I think your caveat about how this is only a portion of what we 
can do about child abuse, is absolutely correct. The first bill I intro- 
duced when I got here 20 years ago was on child abuse, and I am 
still fighting that. 

It is amazing how nobody wants to put resources out there. 
Thank goodness for Hawaii and Healthy Start. They seem to be the 
only ones with the real commitment to put the money down. 

In the interim, we have to work in the world we are in and try 
and figure out what we can do to stop one of the things that drives 
people crazy, that is when they read about somebody abusing chil- 
dren who had a record in other places, and this is one thing that 
we could have stopped. 

We realize this is only a piece of what we need to put together, 
but we need to put it together and keep working on it. We have 
gone through this with child support enforcement, too, and we get 
into this very awkward Kabuki theater type of thing with the 
States and the Federal Government. The States saying, yes, we 
should all be tied together, it would help us with child support en- 
forcement or with background collection. On the other hand, the 
question of how we pay for it gets to be very troubling. We have 
now had some States who have done a very good job, some who 
have not done anything. If we suddenly federally fund the ones 
who didn't do anything, then the ones who did a good job, it is like 
they were foolish to have done a good job because they could have 
had the Federal Government pick it up later on. We see that with 
the floods, the cities who spent money and those who didn't. 

I hear you say $20 million is not enough. How would you deal 
with that at this level as we try to get States and the Federal Gov- 
ernment to work better together? 

What is a fair allocation? The Federal Government can't pick up 
100 percent of everything, but what is it reasonable for a State to 
contribute. The State benefits by this, too. It speeds up their crimi- 
nal justice system. 

Ms. Miles-LaGrange. Congresswoman Schroeder, I may go at it 
another way for purposes of trying to get to where you are trying 



46 

to get with this bill. I think it is critical because of the situation 
that you have described, with just kind of a hodgepodge where 
States are at different points and different levels in their automa- 
tion, in their collection of dispositions, and so forth. I think for pur- 
poses of this bill, if this measure is really going to be effective, we 
need to be acting, or you need to be acting on good information, the 
best information that you can possibly get, about where the several 
States are in this process, about what the anticipated costs — the 
scenario I gave you just by way of illustration, about where Okla- 
homa has to get to, where it is now and where it has to get to, 
those were fairly quickly collected numbers and are certainly not 
hard and fast. 

I think we need to know what we are dealing with, first, in terms 
of dollars, and then we can be more effective in kind of plugging 
in, if you will, to other existing measures. I think it was in the 
1984 legislative session, Senator DeConcini and Congressman Mil- 
ler sponsored legislation to appropriate $25 million to encourage 
States to require national background checks. But the next year, 
the funding was dropped. 

In other programs, which conceivably this effort could be tied 
into — that is the criminal background checks for noncriminal jus- 
tice purposes — we just need to get a better reading. I think that is 
where I would start. 

You can share my response, Congress woman, but I think that is 
where we have to start if we are going to try to get an effective 
handle on it, because your resources are limited, as the States' re- 
sources are limited. We are crying saying, don't send the mandate 
without the money, which you know, we know that you do the best 
you can in that regard as well. But trying to get a real handle on 
it, I think, is a critical first step. 

Mr. Edwards. I think, Senator, that we all, at least on this com- 
mittee, agree with you 100 percent, that the Federal Government 
should not mandate programs and not pay for them. Certainly in 
the criminal justice area, the same rule should apply. There is no 
disagreement on that issue whatsoever. 

Mr. Canady. 

Mr. Canady. Thank you, Mr. Chairman. 

Senator, we really appreciate your being here today. I think your 
comments have been helpful to us and you have highlighted some 
issues that are of critical importance; the issue about what this will 
really cost, and getting to the bottom of that issue I think is 
important. 

I don't say that we can move forward with trying to implement 
something until we have a clear idea of the cost involved for the 
States. It is easy for us to sit here in Washington and pass laws 
and leave it up to the people in the States to bear the costs. I don't 
think we should go about business that way. 

There is another issue that I want to raise about the bill. There 
is a concern brought to my attention, the broad coverage of the per- 
sons that would be considered child care providers. The bill has a 
definition of qualified entities, and basically that involves any orga- 
nization, whether it is private or not-for-profit, which provides child 
care, and child care is defined in the bill as, "the provision of care, 



47 

treatment, education, training, instruction, supervision or recre- 
ation to children." 

As one example of the possible application of this, it occurs to me 
that would include Sunday school teachers, for instance. Now, do 
you have any response to that, or any thoughts on that broad defi- 
nition in the bill and whether there might be some things we could 
do to tighten the focus of this somewhat, not to exclude individuals 
where there is a substantial risk to children, but I don't know that 
we really want to include Sunday school teachers in this type of a 
program. I have serious reservations about whether that would be 
acceptable and would work. 

Ms. Miles-LaGrange. I guess my response, Congressman, to 
that would be that on behalf of the National Conference of State 
Legislatures, I think it is very important to leave the choice to as 
great an extent as possible, the choice of requirements for back- 
ground checks to the States. While we can make a lot of generaliza- 
tions, the mechanism of child care may be set up very differently 
between State A and State B. 

The cost issue, as relates to all of those people who have any- 
thing remotely to do with children, I guess my argument is that 
should be an issue that should be left to the States to make that 
determination. I can make a similar 

Mr. Edwards. Would the gentleman yield at that point? 

The reason that we wrote the bill the way it was, is that the re- 
quest must come from the State agency, so, therefore, the State 
agency will have control over the process and we trust that States 
in their wisdom will not be interested in providing information to 
irresponsible or unqualified agencies, and certainly not Sunday 
schools. Would that be correct, Senator? 

Ms. Miles-LaGrange. That is my understanding of it, Congress- 
man Edwards. But let me go on to say this. Our argument would 
be that clearly leave those requirements, if there is room for — cer- 
tainly I don't think that is the intent of the bill, Congressman 
Canady, to include a Sunday school teacher, to have Sunday teach- 
ers, to require them to have a criminal background check. 

Mr. Canady. I would not suggest that is an intent of anyone. I 
am just concerned about the broad language. The term "child care" 
means the provision of care, treatment, education, training, in- 
struction, supervision or recreation of children. A strong argument 
could be made that that would include Sunday school teachers be- 
cause they are involved in that kind of activity. I think that is 
something we need to focus on and address. 

I agree those types of issues generally can best be dealt with by 
the State legislatures, given the particular circumstances in the in- 
dividual States. 

Mr. Edwards. I would agree with the gentleman from Florida, 
that we can trust the State legislatures and that is the reason we 
don't lightly license the FBI to send criminal records to private peo- 
ple, private corporations, and we made that exception only for 
banks and savings and loans, and probably unwisely, because 
sometimes those records get out. Sometimes they are sold by indi- 
viduals to other people. So these are very important records to be 
kept under very strict controls and we can trust the States, just 
like we think that the States can trust us. 



48 

Mrs. Schroeder, do you have any further questions? 

Mrs. Schroeder. I want to apologize to the witness. I have been 
trying to help the new Surgeon General-designate, and when 
she calls, I answer. This has not been a good day. I think you 
understand. 

Thank you so much for being here. 

Ms. Miles-LaGrange. Thank you. 

Mr. Edwards. Thank you very much, Senator. You have been 
very, very helpful. 

The next three witnesses will testify as a panel. Lynn Swann is 
president of the National Board of Directors, Big Brothers and Big 
Sisters of America, and he is from Philadelphia, PA. We are 
pleased to have Mr. Swann here, even though I might say, Mr. 
Swann, that on quite a number of Sunday afternoons, being a fan 
of the Washington Redskins, you ruined my afternoon. 

Also a member of the panel who will testify after Mr. Swann — 
and Mr. Potts, you can join Mr. Swann — is Lawrence F. Potts, who 
is director of administration of the Boy Scouts of America from Ir- 
ving, TX. And the third member of the panel is Col. Thomas A. 
Handley, who is legal counsel, and he will be accompanied by 
Renova Williams, director of personnel of the Civil Air Patrol, Max- 
well Air Force Base, in Montgomery, AL. 

Mr. Swann, Mr. Potts, and Mr. Handley, without objection, your 
full statements will be made a part of the record. 

We welcome all of you, and you may proceed. 

STATEMENTS OF LYNN C. SWANN, PRESIDENT OF THE BOARD, 
BIG BROTHERS/BIG SISTERS OF AMERICA 

Mr. Swann. Mr. Chairman, committee members, counsel and 
staff, on behalf of Big Brothers and Big Sisters of America, I would 
like to thank you for inviting us to be here this morning. 

Mr. Chairman, my mother once told me if you look past an indi- 
vidual's obvious faults, you usually find a pretty good person. Now 
that we know who your choice of football teams is, we know your 
obvious faults. I will not hold that against you. 

Big Brothers and Big Sisters of America has been around since 
1904, and we are the preeminent mentoring organization in this 
Nation. We have 507 agencies throughout the country. Our pri- 
mary concern is to provide a service to young people across this 
country, to give them a positive adult companion to help guide 
them through what I feel is probably the most dangerous time for 
young people that we have ever seen in our Nation; to give them 
a positive outlook; to make them aware of all the possibilities that 
we have in this Nation for them to grow, to experience, and to be 
the best possible individual that they can be. 

Today in our society our children are actually living and walking 
through a war zone with the possibilities for them to become in- 
jured, to die on the way to school in random shootings, young peo- 
ple carrying arms, drug abuse rampant in our country, child and 
sexual abuse. These are the conditions that our children are living 
under. 

While our primary concern is to provide a productive and positive 
outlook for these young people, our one big concern has to be to 
protect these children. With that in mind, as a part of our basic 



49 

standards and practices for all of our agencies, we require them to 
do a criminal background check of all potential volunteers. 

This sometimes nas been costly. Tnis sometimes has met with 
great obstacles, but we have endured the cost and the burden of 
getting this done. We continue to do other background checks, 
interviews delving into the background of these volunteers. We 
serve over 100,000 children in one-to-one relationships in the Na- 
tion now. We have several thousand on waiting lists. 

Volunteers are very important to us and we need more volun- 
teers across this Nation, but our average is that one out of six vol- 
unteers that applies becomes a big brother or big sister, because we 
are absolutely concerned with the quality of the relationship and 
protecting these young people. After going through an extensive 
background check, the parents and the children meet these volun- 
teers and the parent has the ultimate decision of whether or not 
this relationship, this one-to-one match is going to be made. 

And we would like to provide them with as much information for 
them to make the educated and smart decision for the welfare of 
their child. We are behind H.R. 1237. And we believe that like a 
young child, this bill is in its infancy, and it is being conceived with 
the idea that we want it to grow and be productive and to be 
strong. 

But as a child is born into this world, it may not yet have all 
of its teeth and the power to sustain its own life. But with great 
care and concern and time, we hope to make sure that the child 
will grow strong and make the positive decisions and have the most 
positive outcome. 

With that in mind, Big Brothers and Big Sisters stands ready to 
help and provide you with as much information, and stands behind 
H.R. 1237 to make sure that we begin the process, something that 
is long overdue and very necessary for all the child care volunteer 
agencies in this Nation. 

Thank you. 

Mr. Edwards. Thank you, Mr. Swann. We are pleased to have 
the support of your great organization. 

[The prepared statement of Mr. Swann follows:] 



50 



Big Brothers/Big Sisters of America 



Testimony of 

Lynn C Swann 

President of the Board 

Big Brothers/Big Sisters of America 

before the 

House Committee on the Judiciary 
Subcommittee on Civil and Constitutional Rights 



Friday, 16 July 1993 
Capitol Building 
Washington, DC 




® 



230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 FAX 215 567.0394 



51 



Big Brothers/Big Sisters of America 



Thank you. Chairman Brooks, for providing me the opportunity to testify before this 
Subcommittee regarding HR 1237, a bill to establish procedures for national criminal 
background checks. 

I am Lynn Swann, president of the board of Big Brothers/Big Sisters of America, the 
federated movement of over five hundred Big Brothers/Big Sisters affiliated agencies, 
located in all fifty states. The Big Brothers/Big Sisters movement began in 1904 to 
provide One-To-One services to boys and girls in need of additional adult support and 
guidance. 

Big Brothers/Big Sisters of America exists to build the capacity of local affiliated 
agencies to give children and youth, typically from single parent homes, the 
opportunity to experience healthy relationships with caring adult volunteers, primarily 
through One-To-One services. Such relationships are the foundation for developing 
the full potential of boys and girls as they grow to become competent and caring men 
and women. 

Mr Chairman, as you know, our nation's children face greater obstacles today than 
ever before. Illiteracy, substance abuse and broken families challenge social service 
organizations such as ours. Big Brothers/Big Sisters of America, however, is working 
to meet that challenge by helping troubled children to lead productive lives. 

The One-To-One program works. According to the Carnegie Council on Adolescent 
Development, at-risk children who have successfully overcome problems "have been 
shown to have at least one significant positive role model, " other than a parent. It is 
this very premise on which the Big Brothers/Big Sisters movement is based, and the 
reason why I appear before you this morning. 

I encourage your support and adoption of HR 1237 because it will assist in protecting 
the children we serve. Protecting children is our highest priority. 

Selection of the most appropriate volunteers to serve as Big Brothers and Big Sisters is 
a task our affiliated agencies take very seriously. We believe we have a 
comprehensive approach to the selection of adult volunteers which includes 
orientation, written application, at least three references, two in-depth interviews. 



230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 PAX 215 567.0394 



52 



Big Brothers/Big Sisters of America 

home assessment, interviews with significant others, criminal background checks and, 
in some cases, psychological testing. Additionally, all applicants must go through a 
child sexual abuse prevention orientation, education or training. 

It is a comprehensive approach, but not foolproof. Our affiliates are required by our 
Standards and Required Procedures for One-To-One Service to obtain the arrest and 
conviction records of a volunteer from local, state or national law enforcement 
authorities, where legally permissible. Where such records are not legally accessible 
to the agency, the volunteer must provide an authentic copy of his/her arrest and 
conviction records. 

As you can see, a critical component of our volunteer selection process is the criminal 
background check that all agencies must conduct. Some states do not permit or do not 
assist with the obtaining of police checks (for example. New York and New Jersey), 
while others require cost prohibiting fees; some agencies can only obtain local or 
county checks. 

Considering our volunteer population, typically individuals under age 35, a highly 
mobile age bracket, and our wide use of college and military personnel who travel and 
live in various locations, the need is to go beyond the local or state system to obtain 
criminal background checks. 

A few stales now require fingerprinting as a means of identification. Fingerprinting is 
effective, however, we are concerned with the amount of time involved with securing 
fingerprints and obtaining criminal background checks. Our volunteer selection 
process (from inquiry through acceptance) typically takes approximately four to six 
weeks. Our agencies in Maryland and California, for example, have experienced 
lengthy delays in the processing of criminal checks. We would hope that the process 
addressed in this legislation would be conducted in a timely manner so that we would 
not risk losing valuable volunteers because of excessive processing time. Our 
volunteers are the life blood of the service we provide and our agencies need to be able 
to process these volunteers in a timely manner. 

In addition to the selection of volunteers, we are most interested in the prevention of 
child sexual abuse, and have developed EMPOWER, the child sexual abuse education 
and prevention program designed by Big Brothers/Big Sisters of America for its 
affiliated agencies. This, and other similar prevention programs, have proven effective 
in educating adults and children about the threat of child sexual abuse. EMPOWER 



230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 FAX 21 5 567.0394 



53 ' 



Big Brothers/Big Sisters of America 

offers pre- and post-program questionnaires to measure program effectiveness for each 
of the six program variations. 

EMPOWER can effectively be used to train professional staff, adult volunteers, 
parents, teens 13 years of age and older and children between the ages of 6 and 12. 
EMPOWER uses a variety of training methods that include videos, informal 
discussions, group activities and games for children. Training methods are flexible 
and can be easily adapted to the age and developmental level of the training 
population. The program design is based on the belief that providing training for 
professional staff, parents, adult volunteers, and most importantly, children and teens, 
is a responsible and needed contribution toward addressing a serious issue in our 
society. 

While education is extremely important in the prevention of child abuse, it is also 
important to deter individuals from our program who could potentially harm children. 

This legislation of national criminal background checks would create a uniform and 
consistent method of reporting and tracking individuals who have been involved in 
child abuse crimes. As a national organization, with affiliates in all fifty states, we are 
most interested in an approach on a national level that will enable our agencies to 
access criminal background checks. The modest investment of dollars would pay 
significant dividends, if only a few children are saved by this reporting requirement. 
We urge your full support of HR 1237. 

Mr Chairman, I thank you for the opportunity to appear before your subcommittee 
today. 



Lynn C Swann, Board President 
Big Brothers/Big Sisters of America 
16 July 1993 



230 North Thirteenth Street - Philadelphia - Pennsylvania 19107 215 567.7000 FAX 215 567.0394 



54 

Mr. Edwards. We will now hear from the next member of the 
panel. Lawrence F. Potts, director of administration for Boy Scouts 
of America. 

Mr. Potts. 

STATEMENT OF LAWRENCE F. POTTS, DIRECTOR OF 
ADMINISTRATION, BOY SCOUTS OF AMERICA 

Mr. Potts. I, too, am pleased to be here today to represent the 
Boy Scouts of America and their views on H.R. 1237, the National 
Child Protection Act. I have attached to my statements some back- 
ground information on the Boy Scouts of America, and also their 
child abuse prevention program. I also serve as a member-at-large 
on the U.S. Advisory Board on Child Abuse and Neglect, and I am 
not here today representing their views on this bill. 

The Boy Scouts of America has been deeply concerned about the 
welfare of youth since 1910. More recently, in 1986, then chief 
scout executive, Ben Love, identified child abuse as one of five 
unacceptables. The others are drug abuse, hunger, illiteracy and 
youth unemployment. 

To combat child abuse, BSA, with the help of experts, has de- 
signed a special five-point plan. The elements are: education at all 
levels, adults, parents, volunteers and even youth, in the detection 
and prevention of child abuse; assisting sponsoring organizations in 
strengthening leader selection procedures; creating barriers within 
the scouting program; encouraging prompt reporting of any alleged 
incident; and taking swift action once a report is received. 

Much more indepth information on our program is contained in 
the excerpted article that was included in the handout materials. 

Turning to the legislation, I want to give you some brief informa- 
tion on scouting so that can you understand our approach to this 
legislation. The charter of the Boy Scouts of America indicates that 
the purpose of the Boy Scouts of America is to provide, through 
other organizations, an educational program for boys and young 
adults to build character, learn citizenship, and develop personal 
fitness. Our method of program delivery may make us unique with- 
in the ranks of large national youth programs. We don't operate 
storefronts. We don't organize or operate Cub Scout packs or Boy 
Scout troops ourselves. 

We offer the program of the Boy Scouts of America to community 
groups for them to use as part of their own youth work. Today 
there are more than 85,000 community organizations who use the 
scouting program. An example of such an organization would be a 
local church or a school PTA. 

These local community organizations operate more than 124,000 
Cub Scout packs, Boy Scout troops and other scouting units. In the 
operation of these units, these organizations provide more than 1.1 
million registered volunteers. They are the community organiza- 
tions which will be faced with this criminal background checking 
legislation once the States pass these laws. 

Without these organizations, or their volunteers, our program, 
which serves more than 4.1 million youth, could not exist. The 
challenge that many of these organizations and other organizations 
face today is finding adequate volunteers, particularly in the inner- 
city programs. The volunteers are very difficult to find. While we 



55 

applaud your efforts to attack a very serious societal problem, 
while we all agree that one case of child abuse is one too many, 
child sexual abuse in institutions like schools, like churches, like 
nonprofit youth organizations, and like day care centers, probably 
amounts to less than 20 percent of the total child sexual abuse in 
our society. And sexual abuse is only 14 percent of all reported 
child abuse incidents. 

Volunteers in youth programs are already stretched in terms of 
time and cost of participation. Many mothers and fathers will sim- 
ply be unable to pay the additional cost involved in obtaining fin- 
gerprints or background checks. Some might expect that organiza- 
tions should pay, but local PTA's and churches don't have the kind 
of funds to pay for 20 volunteer leaders who would be involved in 
a Cub Scout pack. 

It is undoubtedly true that many worthy volunteers would simply 
not wish to subject themselves to being fingerprinted. The cost in 
the loss of volunteers would be significant with most estimates run- 
ning from 20 to 30 percent. And the loss of volunteers will trans- 
late directly into a loss of programs for youth. 

Some have thought that making the fingerprint background 
check optional for the organization will make it easier on volunteer 
organizations and I would point out, however, that this legislation, 
if passed by the States, using the language that you have put up, 
would establish a legal standard of care. And that standard of care 
would have to be followed by all organizations who would otherwise 
suffer massive civil justice damages in the event of an abusive 
incident. 

And unfortunately, experts have indicated that criminal back- 
ground checks identify in advance nothing more than a small mi- 
nority of those that are predisposed to molest a child. I have ad- 
dressed my concerns with you today briefly on the legislation with 
respect to volunteers. 

This is because BSA is primarily a volunteer movement and be- 
cause we believe that there are some important distinctions be- 
tween employees and volunteers. We believe that the focus of this 
legislation should be the employee who has an economic interest in 
their position. 

In the event that this legislation goes forward, including volun- 
teers as it does now, I would ask that it include language that vol- 
unteers and their organizations should be exempted from paying 
for either the fingerprint process or the criminal history check. 

I thank you for inviting me here today. 

Mr. Edwards. Well, thank you, Mr. Potts, and I am pleased that 
you emphasized that there must be investigation. A clean criminal 
record is no substitute for an investigation. 

Mr. POTTS. We completely agree with you, Mr. Chairman. And 
we are also concerned that many people would look at this as the 
solution, the panacea, and will not do the other things that need 
to be done. 

Mr. Edwards. Well, thank you. 

[The prepared statement of Mr. Potts follows:] 



56 

Prepared Statement of Lawrence F. Potts, Director of Administration, Boy 

Scouts of America 

My name is Lawrence Potts. I work for the Boy Scouts of America in the capacity 
of Director of Administration. I am pleased to appear here today representing the 
Boy Scouts of America and their views on House Bill 1237, National Child Protec- 
tion Act. I've attached to my statement some background information on the Boy 
Scouts of America and also on their Youth Protection Program 

I also serve as a member-at-large on the U.S. Advisory Board on Child Abuse and 
Neglect. I am not here today representing their views on House Bill 1237. 

The Boy Scouts of America has been deeply concerned about the welfare of youth 
since 1910. In 1986 then Chief Scout Executive, Ben Love, identified child abuse as 
one of "Five unacceptables" to BSA. The others are drug abuse, hunger, illiteracy, 
and youth unemployment. To combat child abuse BSA, with the help of experts, has 
designed a special five-point plan. The elements are: (1) education at all levels on 
the detection and prevention of child abuse, (2) assisting sponsoring organizations 
in strengthening leader selection procedures, (3) creating barriers to child abuse 
within Scouting, (4) encouraging prompt reporting of any alleged incident, and (5) 
taking swift action once a report is received. More in-depth information on the BSA 
program is contained in the excerpted article which is included in the handout 
m fltcri q. 1 s 

Turning to the legislation I want to give you some brief information on Scouting 
so that you can understand our approach to the legislation. The Charter of the Boy 
Scouts of America indicates that the purpose of the Boy Scouts of America is to pro- 
vide through other organizations an educational program for boys and young adults 
to build character, learn citizenship and develop personal fitness. Our method of 
program delivery may make us unique within the ranks of large national youth pro- 
grams. We don't operate store fronts, organize, or operate Cub Scout packs and Boy 
Scout troops ourselves. We offer the program of the Boy Scouts of America to com- 
munity groups for them to use as a part of their own youth work. Today more than 
85,000 community organizations use the Scouting program, operating more than 
124,000 Cub Scout packs, Boy Scout troops, and other Scouting units. An example 
of such an organization would be a local school PTA or church. These community 
organizations provide more than 1.1 million registered volunteers. These are the 
community organizations which would be faced with the criminal background legis- 
lation. Without these organizations and their volunteers, our program, which serves 
more than 4.1 million youth, could not exist . 

The problem that many of these organizations face today is finding adequate vol- 
unteer leaders. The kids are there, but volunteers are more difficult to find, particu- 
larly in the inner cities. On the one hand we applaud your efforts to attack a very 
serious societal problem in this country. While we all agree that one case of sexual 
abuse is one too many, child sexual abuse in institutions and organizations probably 
amounts to less than 20% of the total child sexual abuse in our society, and sexual 
abuse is only 14% of all reported child abuse incidents. 

Volunteers in youth programs are already stretched in terms of time and cost of 
participation. Many mothers and fathers will simply be unable to pay the additional 
cost involved in obtaining fingerprints or background checks. Some might expect 
that the organizations should pay, but local PTA's or churches don't have the kind 
of funds to pay for the 20 volunteer leaders who would be involved with a Cub Scout 
pack. It is also undoubtedly true that some worthy volunteers would simply not 
wish to subject themselves to being fingerprinted. More volunteers will be lost in 
this fashion. The cost in the loss of volunteers will be significant with most esti- 
mates running from 20% to 30%. Loss of volunteers will translate directly into a 
loss of programs for youth. 

Some have thought that making the fingerprint background check optional lor the 
organization will make it easier on volunteer organizations. I would point out that 
this legislation, if passed by the states, would establish a legal "standard of care." 
This "standard of care" would have to be followed by organizations who could other- 
wise suffer massive civil justice damages in the event of an abusive incident. Unfor- 
tunately, experts have indicated that criminal background checks would identify in 
advance nothing more than a small minority of those who are predisposed to molest 

a child. i.i.ii.. ■.. 

I have addressed my concerns briefly with you today on this legislation with re- 
spect to volunteers. This is because BSA is primarily a volunteer movement and be- 
cause there are some important distinctions between employees and volunteers. We 
believe that the focus of this legislation should be employees who have an economic 
interest in their position. In the event that this legislation goes forward, including 
volunteers as it does now, I would ask that it include language that volunteers and 



57 

their organizations be exempted from paying for either the fingerprint process or the 
criminal background check. 

I thank you for inviting me here today, and I hope that my comments have been 
helpful to your deliberations. 




BOY SCOUTS OF AMERICA 

External Communications 

132S West Walnut Hill Lane 

P.O. Box 1 52079. Irving. Texas 7501 5-2079 

Telephone 214-580-2000 



FACT SHEET 



PURPOSE 



CHARTERED 
ORGANIZATIONS 



PROGRAM 



VOLUNTEER 
LEADERS 



NATIONAL 
ACTIVITIES 



BSA AT A GLANCE 

The purpose of the Boy Scouts ol America, incorporated on February 8. 1910. and chartered by 
Congress in 1916. is to provide an educational program for boys and young adults to build char- 
acter, to train in the responsibilities of participating citizenship, and to develop personal fitness. 

Community groups receive national charters to use the Scouting program as a part of their 
own youth work. These groups, which have goals compatible with those of the BSA. include 
religious, educational, civic, fraternal, business, and labor organizations, governmental bod- 
ies, corporations, professional associations, and citizens' groups 

Tiger Cub*. BSA. A one-year program for first-grade (or 7-year-old) boys and their adult 
partners that stresses equal participation. The boy and adult meet weekly for family activities 
and monthly for an activity with other Tiger Cubs and adults in their group. 

Cub Scouting. A family- and home-centered program for boys who are in second through 
fifth grades (or 8. 9. and 10 years old). When they enter the fourth grade, they can become 
Webelos Scouts and prepare to become Boy Scouts. 

Boy Scouting. A program for boys 1 1 through 1 7 designed to achieve the aims of Scouting 
through a vigorous outdoor program and peer group leadership with the counsel of an adult 
Scoutmaster. (Boys also may become Boy Scouts if they have earned the Arrow of Light 
Award or have completed the fifth grade.) 

Varsity Scouting. An active, exciting program for young men 14 through 17 built around five 
program fields of emphasis: advancement, high adventure, personal development, service, 
and special programs and events. 

Exploring. A contemporary program tor young men and women ages 14 through 20 that pro- 
vides opportunities to participate in career, hobby, or sports programs in association with 
business and community organizations. Special-interest posts cover more than 180 careers. 
40 hobbies, and 35 sports. 

Volunteer adult leaders serve at all levels of Scouting in approximately 380 local councils. 32 
areas, and 4 regions, and nationally with volunteer executive boards and committees provid- 
ing guidance. 

Each autonomous local council is chartered by the BSA. which provides program and training 
aids along the guidelines established by the national Executive Board and the national char- 
ter from Congress 

Cub Scouting continues to strengthen the tie of the family in Scouting and to encourage 
physical fitness through the Cub Scout sports emphasis, and more than 2.200 Cub Scout 
day camps 

Boy Scouts and Varsity Scouts have many special activities available to them, such as 
camporees. summer camps. Scouting shows. a"d national lamborees The Order of the 
Arrow, the national brotherhood of honor campers, recognizes those Scout campers who best 
exemplify the Scout Oath and Law in their daily lives, and it has local lodge section, and 
national meetings. Those who have become Eagle Scouts, the highest advancement award 
in Scouting, may join the National Eagle Scout Association. All camps are inspected and 
accredited annually by teams of trained volunteers to ensure the health, safety, and quality of 
program for campers 

Exploring holds a biennial national conference for youth and adult members that offers work- 
shops and activities on careers leadership, sports, outdoor adventure, and personal skills. 



58 



LEARNING 
FOR LIFE 



NATIONAL 
GOOD TURNS 

PUBLICATIONS 



FINANCIAL 
SUPPORT 



MEMBERSHIP 
AND UNITS 



The biennial national law enforcement Exploring conference provides competition, training, 
demonstrations, program exchanges, and career information in this field. An annual mock-trial 
competition provides a national challenge for Explorers interested in the legal field. 

Scouting Anniversary Celebrations, during February, include observance of the BSA's 
February 8 birthday, Scout Sabbath, and Scout Sunday. Unit activities feature blue and gold 
banquets, courts of honor, and open-house meetings. 

Cub Scouts, Boy Scouts, Varsity Scouts, and Explorers participate in Scouting Environment Day 
in April and Scouting Energy Day in October. Explorers and older Boy Scouts have a wide van- 
ety of exciting outdoor experiences available at the three national high-adventure areas located 
in Minnesota (with satellites in northern Wisconsin, Manitoba, and Ontano), Florida, and New 
Mexico. Volunteer leaders may attend the Philmont Training Center in New Mexico each sum- 
mer for a weeklong training conference. 

Learning for Life is a wholly owned subsidiary of the Boy Scouts of America. The mission of 
Learning for Life is to serve others by helping to instill values of good character, participating 
citizenship, and personal fitness in young people, and in other ways prepare them to make 
ethical choices throughout their lives so that they can achieve full potential. 

Learning for Life can help schools prepare students to handle today's complex society. It's 
designed to build confidence, motivation, and self-esteem. It can help students leam positive 
personal values and make ethical decisions. Character development is a lifelong process, with 
roots firmly planted in childhood. Learning for Life has curricula designed to fulfill its mission. 

The Good Turn remains an important part of Scouting. It can be a simple daily act of 
assistance from an individual youngster, or a coordinated national effort. 

The Boy Scouts of America publishes three magazines for its members: Soys' Life, for all boys, 
once a month, Exploring, a magazine for young men and women and their Exploring leaders, 
four times a year, and Scouting, for all registered adults in Cub Scouting, Boy Scouting, and 
Exploring, six times a year. 

In addition, handbooks for all phases of the Scouting program are published, as well as more 
than one hundred merit badge pamphlets for Boy Scouts, leader books, training pamphlets, 
several program helps booklets for unit leaders, and other literature for use by youth members. 
adult leaders, and parents. 

The national council is supported largely through the annual fees paid by all members and 
service fees paid by local councils, an Annual Giving Campaign among national employees and 
selected volunteers, income from the sale of Scouting equipment, bequests, and special gifts. 
Local councils are supported by communities through the United Way. the annual Sustaining 
Membership Enrollment (SME), Friends of Scouting, special events, investment income, 
bequests, endowment gifts, and special contributions. 

On the unit level, chartered organizations that use the Scouting program provide meeting 
places and often furnish program materials and other facilities. Youth members help to pay their 
own way by paying dues to their pack, troop, team, or post treasuries and through approved 
money-earning protects. 

Membership since 1910 totals more than 85 million. As of December 31, 1992. membership 
was 5.339.81 3. 



Youth Members 

Tiger Cubs 367.549 

Cub Scouts 952.797 

Webelos Scouts 790.190 

Lone Cub Scouts 97 

Boy Scouts 914.052 

Varsity Scouts 61 .285 

Lone Boy Scouts 252 

Explorers 367.093 
Learning lor Life 

Elementary 120.640 
Middle/junior high 64.410 

High school 471,658 

Special needs 40,305 



Adult Members 

Cub Scout leaders 576,225 

Lone Cub Scout leaders 56 

Boy Scout leaders 422,063 

Varsity Scout leaders 20. 1 08 
Lone Boy Scout lead - -s 121 
Explorer leaders 84.252 

Council Scouters 69.633 

Learning for Life leaders 

Elementary 3,114 

Middle/|unior high 1.602 

High school 7.832 

Special needs 4,479 

1.189.485 



Units 

Cub Scout packs 
Boy Scout troops 
Varsity Scout teams 
Explorer posts 
Learning tor Life 

Elementary 

Middle/junior high 

High school 

Special needs 



51.996 

44.515 

6.211 

20.323 

883 

526 

2.213 

1.562 

128 229 



4 150.328 



1993 Printing 



59 




BOY SCOUTS OF AMERICA 



External Communications 

1325 West Walnut Hill Lane 

RO. Bo» 152079. Irving. Texas 75015-2079 

Telephone 214-580-2000 



FACT SHEET 



COMMUNITY ORGANIZATIONS AND 
THE BOY SCOUTS OF AMERICA 



HOW 

COMMUNITY 

ORGANIZATIONS 

USE THE 

SCOUTING 

PROGRAM 



PURPOSE That the purpose of this corporation shall be to promote, through organization and cooper- 

ation with other agencies, the ability of boys to do things for themselves and others, to 
train them in Scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred 
virtues, using the methods which are now in common use by Boy Scouts. 

Sec. 3. federal charter. Boy Scouts of America 
June 15, 1916, by the United States Congress 

CHARTERS Two kinds of charters are issued by the Boy Scouts of America: one to community organi- 

zations, and the other to local BSA councils. The first enables community groups to 
use the Scouting program under their own leadership as a service to their children, youth, 
and families. The other empowers local councils to help chartered organizations effec- 
tively use the Scouting program and to expand the use of the program to other commu- 
nity groups. 

Schools, community and religious organizations, and groups, with the help of the BSA, 
organize Cub Scout packs. Boy Scout troops, varsity Scout teams. Explorer posts, and 
Career Awareness posts for children and youth. They manage these units and control 
the program of activities to support the goals and objectives of the chartered organiza- 
tions. When establishing a new unit these two important actions must be taken to ensure 
a quality Scouting program: 

1. Selecting leadership. The head of the chartered organization appoints a chartered 
organization representative to provide leadership in the selection of a committee of 
adults that will provide overall supervision for the unit's program. The committee 
selects the adult unit leaders who work with the youth. The chartered organization 
representative is also a voting member of the local council and may serve as a mem- 
ber of the district committee. 

2. Providing a meeting place and promoting a good program. The chartered organi- 
zation arranges for adequate meeting facilities for the unit and promotes through 
its committee the full use of the program, including outdoor experiences, advance- 
ment, recognitions, and, in particular. Scouting's values. 

HOW THE BSA To support more than 124,628 Scouting units owned and operated by chartered organi- 

SUPPORTS THE zations, more than 395 BSA councils provide professional counseling and administra- 

COMMUNITY tion. commissioner service, training for leaders, camping and outdoor facilities, program 

ORGANIZATION material and literature, planning tools, and other program aids. Councils also maintain 

records on units and their membership, provide rank certificates and merit badge cards, 

and maintain service centers where badges, insignia, literature, and other helps may 

be obtained. 

In addition, annual charter review conferences are conducted by council representa- 
tives with chartered organization personnel to evaluate how effectively the Scouting pro- 
gram is being delivered and how it may be improved. 



60 



A Sampling of Chartered Organizations Serving Children, Youth, 
and Families with the Program of the Boy Scouts of America 



BUSINESS AND INDUSTRY 

Aluminum Company of America 

AT&T 

Amencan Airlines. Inc. 

Amoco Corporation 

Burlington Northern, Inc. 

Corning Glass Works 

Dow Chemical Co. 

Eastman Kodak Co. 

Ford Motor Co 

General Electric Co. 

General Motors Corp. 

Goodyear Tire and Rubber Company 

Hewlett-Packard Co. 

Honeywell. Inc. 

International Business Machines Corp. 

J. C. Penney Company. Inc. 

McDonnell-Douglas Corp. 

PPG Industries, Inc. 

Rockwell International Corp. 

Tandy Corp. 

Uptohn Co. 

USX Corporation 

Westmgnouse Electric Corp. 

COMMUNITY 

Air Force Association 

Alpha Phi Alpha 

American Bar Association 

Amencan Legion. The 

Amencan Red Cross 

AMVETS (Amencan Veterans ot WWII. Korea, 

and Vietnam) 
Boys Clubs of America 
Civil Air Patrol 
Civitan International 
Community Centers 
Conservation Clubs 
OAV (Disabled Amencan Veterans) 
Eagles. Fraternal Order of (F.O.E.) 
Economic Opportunity Commisawn 
Elks. Benevolent and Protective Order of 

(aRO-E.) 
Exchange International 
Farm Bureau Federation. American 
Fire Chiefs. International Association of 

PARC) 
Fire Departments 
4-H 

Future Farmers of America (FF.A.) 
Grange. National 
Hospitals. Medical & Professional 

Engineering Societies 
Housing Protects 

Indian Affairs. American Association on 
Indian Tnbal Councils 
Izaak Walton League of America 
Jaycees. United States 
Job Corp Centers 
Kiwanis International 
Knights of Pythias 
Lions International 
Masonic Order 

Eastern Star. Order of 
Military Reserves 
Moose, Loyal Order of 
National Guard. Army and Air 
Neighborhood Associations 
Odd Fellows Independent Order of 
Optimist International 
Parents Withoul Partners 
Police Departments 



Power Squadrons 

Rotary International 

Roundtable International 

Runtan National 

Sertoma International 

Sons of the Amencan Revolution 

US Air Force 

US. Army 

US Coast Guard 

US Coast Guard Auxiliary 

U.S Mann* Corp* 

US Navy 

VFW (Veterans of Foreign Wan) and 

Auxiliaries) 
Western Electric 
Women's Club* 

YMCA (Young Men's Christian Association) 
YMHA (Young Men's Hebrew Association) 
YWCA (Young Women's Christian 

Association) 

EDUCATION 

Independent Schools. National Association of 
PTA (National Congress of Parents and 

Teachers) 
Private School* 
Public School* 

LABOR 

AFL-CIO (Amencan Federation of Labor and 

Congress of Industnal Organization) 
Automobile. Aerospace & Agricultural 

Implement Workers of America 

International Union. United 
Boilermakers. Iron Ship Builders. 

Blacksmiths. Forgers and Helpers of 

America. International Brotherhood of 
Communications Workers of America 
Electronic Electrical. Salaned. Machine 

and Furniture Workers. International 

Union of 
Electrical Workers. International 

Brotherhood of 
Engineers. International Union of Operating 
Rre Fighters. International Association of 
Food and Commercial Workers 

International Union, United 
Glass. Pottery. Plastic* and Allied Workers 

International Union 
Industnal Workers of America. International 

Union. Allied 
iron Workers. International Association of 

Bndge. Structural and Ornamental 
Letter Carriers, National Association of 
Machinists and Aerospace Workers, 

International Association of 
McJders and Allied Workers Union, 

International 
Oil. Chemical and Atomic Workers 

International Union 
Paperworkers International Union. United 
Plumbing and Pipe Fitting Industry of the 

United States and Canada. United 

Association of journeymen and 

Apprentices of the 
Postal Workers Union. Amencan 
Rubber. Cork. Linoleum and Plastic 

Workers of America. United 
Steefworkers of Amenca. United 
Teachers. Amencan Federation of 
United Industnal Workers of North 

America. Seafarers International Union of 

North Amenca 



Education Association. National 

Teamsters Chauffeurs. Warehousemen, and 

Helpers of Amenca. imemational 

Brotherhood of 

REUGIOUS 

African Methodist Episcopal Church 
African Methodist Episcopal Zion Church 
Armenian Church of North Amenca 
Assembly of God Church 
Baha'i Faith 
Baptist Churches 

Amencan Baptist Association 

Amencan Baptist Churches in USA 

General Association of Regular Baptists 

Primitive Baptist 
Baptist Conventions 

National Baptist Convention of Amenca 

National Baptist Convention USA. inc. 

Progressive National Baptist 
Convention. Inc. 

Southern Baptist Convention 
B'nai B'rith 

Brethren. Church of the 
Buddhist Churches ot Amenca 
Byzantine Rite Catholic Church 
Catholic Church (Roman) 
Catholic Organizations 

Catholic Parent Organization. National 
Forum of 

Holy Name Society (Roman Catholic) 

Knights of Columbus 

Catholic Youth Organization 

Catholic War Veterans 

Serra International 
Christian Church (Disciples of Christ) 
Christian and Missionary Alliance Church 
Church of Christ 
Church of Jesus Chnst of Latter-day Saints 

(Mormon) 
Church of God 
Congregational Church 
Episcopal Church. The 
Evangelical Churches 
Federation of Islamic Associations >n the US 

and Canada 
First Church ol Chnst. Scientist 
Greek Orthodox 
Jenovan j Witnesses 
Jewish Synagogues and Centers 

Jewish War Veterans 
Lutheran Churches 

Evangelical Lutheran Church in 

Amenca. The 

Lutheran Church. Missoun Synod. The 
Mennomte Church 
Methodist Church, The Unrted 
Moravian Church m Amenca 
Nazarene, Church ot the 
Orthodox Churches 
Pentecostal Churches 
Presbyterian Church (USA) 

Cumberland Presbyterian Church 
Reformed Church in Amenca 
Religious Society ot Fnends (Ouakers) 
Reorganized Church of Jesus Chnst ol Latter 

Day Saints 
Salvation Army. The 
Seventh Day Adventists 
Unitanan Universalis! Association 



1992 Printing 



61 



CHILD OWE 
& NGGLGCT 

a 

TUC 

JOURNAL 



Official Publication of the International Society 
for Prevention of Child Abuse and Neglect* 



"The Youth Protection Program 
of the Boy Scouts of America" 

Lawrence F. Potts 
Boy Scoffs of America, Irving, Texas 



Reprinted from Volume 1 6, Number 3, 1 992 
Used witfi Permission 



No 46-005 
1992 Printing 



nr\ /- r\r\ r\ r\ . 



62 



INTRODUCTION 

OVER THE COllRSK of its Kd-year history, (he Ikiv 
Scouts of America has become a part of the fabric of 
American society. The Scouting program extends 
into almost even city and town in the nation. 
involving millions of young people and adult volun- 
teers each year. In fact, nearly JO percent of the 
American youth population comes into contact with 
Scouting every year. 

The nearly universal presence and availability of 
Scouting presents lx>th problems and opportunities 
for the organization. Much like the public schools. 
Scouting must confront and deal with many of the 
social problems that plague our contemporary cul- 
ture. At the same time, however, the boy Scouts of 
America (USA), as a well-organized, disciplined, and 
highly structured youth-sen inn organization, is in a 
strong position to have a positive impact on the 
pressing social problems of the day. 

The USA has a long tradition of addressing social 
problems within the context of building character, 
citizenship, and fitness among young people. 
Through Scouting, young lioys can learn coping 
skills that will help them navigate through some of 
the hazards of contemporary American life 

In the early and mid-1980s, the national leader- 
ship of the BSA identified five compelling societal 
problems that posed challenges anil opportunities 
for the USA to have a positive impact. Referred to by 
the BSA as the Five I'nacceptables." the problems 
are: drug abuse, hunger, illiteracy, youth unemploy- 
ment, and child abuse, including child sexual abuse. 



BOY SCOUTS OF AMERICA— 
THE ORGANIZATION 

The USA is made up of nearly t(X) local councils 
accredited by the national USA. Each local council is 
incorporated as a nonprofit organization and has its 
own staff and hoard of directors. The local councils 
are responsible for chartering sponsors, such as 
schools, churches, synagogues, and service organi- 
zations, which essentially own and o|X - rate the 
Scouting program lor th—'r own youth. 

The national BSA develops the programs, estab- 
lishes policies and procedures, provides leadership 
training for Scouting professionals and designs lead- 
ership programs tor volunteer leaders. The national 
BSA also operates special high-adventure areas, 
such as I'hilmont Scout Ranch in the mountains of 
New Mexico and the Flonda National High-Adventure 
Sea Base Additionally, the national organization 
provides marketing support and produces and 



distributes a vast array of educational materials and 
Scouting supplies. 



BSA Confronts Child Sexual Abuse 

In the early and mid- 1980s, child sexual abuse 
burst into the public consciousness by way of 
national media coverage of dramatic allegations in 
communities in Southern California and Minnesota. 
These incidents and the subsequent media coverage 
did much to heighten the public s awareness of child 
sexual abuse as a widespread societal problem 

Recognizing that BSA memlx'rs. like the rest of 
society, could lx' affected by this widespread 
problem, the national leaders of the Boy Scouts of 
America committed the BSA to taking a leadership 
role in developing strategies to deter, if not prevent, 
all forms of child abuse, including sexual abuse. 
BSA officials reviewed the literature on child sexual 
abuse and consulted with nationally recognized 
experts for advice and guidance. 

To address child sexual abuse in its Youth 
Protection Program, the BSA drew upon Dr. David 
Finkelhor's four preconditions for child sexual abuse 
as the issues to be dealt with in the program. Those 
four preconditions are: 1 1 An offender with the moti- 
vation to sexually abuse: 1) the molester must over- 
come internal inhibitions against abusing; 3' the 
molester must overcome external harriers to abus- 
ing; and -t) the molester must overcome resistance 
bv the child. 



Education at Many Levels 

Because of the BSA s multilayered organizational 
structure, education aimed at the detection and pre- 
vention of child abuse had to lx* undertaken at 
many different levels, beginning with the "500 
people employed full-time in Scouting across the 
country. Through this initial educational program. 
BSA employees were trained to recognize the differ- 
ent tonus of child abuse, including child sexual 
abuse, and the methods cmploved bv molesters. 
Each BSA employee also was made aware of the 
BSA's policies and procedures for handling reports 
or allegations of child abuse. The policies and pro- 
cedures are spelled out in an official BSA publica- 
tion for professional staff and key volunteers. 
Perhaps most importantly, the training program sent 
a message to even- BSA employee that child abuse 
was an issue that the BSA would deal with openly 
and aggressively. 

Training the BSA staff and support personnel was 
important, but developing a program to train the 



63 



more than I million adults who serve as Scouting 
volunteers each year was an even greater challenge. 
An initial pamphlet entitled Child Abuse. Lei s Talk 
About II was published and distributed beginning in 
1986. It contained a strong statement by the BSA 
officially expressing the organization's concern 
about child abuse generally and child sexual abuse, 
specifically. The BSA also produced and distributed 
a training program for adult volunteers that included 
a 90-niinute videotape and printed learning guide. 
The training program was designed in such a way 
that it could lie used by any youth-serving agency. 
given the widespread nature of the problem. This 
training packet was revised in 1990. The revised 
video interweaved dramatizations of typical child 
sexual abuse situations with comments by members 
of the BSA's Youth Protection Advisory Panel, and 
the content was broadened to lie relevant to parents, 
as. well as volunteer leaders. More than 13 million 
adult volunteers went through the training in 1990. 

Any adult who attends the USA s special programs 
must go through the Youth Protection tnuning pro- 
gram, and a special training program was developed 
for adults and youths who attend the National Camp 
School. In addition, the revised Bay Seoul handbook 
as well as the handbooks for the three Cub Scout 
levels, include a pull-out. 2-i-page booklet. How to 
protect vottr children from child abuse and drug 
abuse A parent's guide. The guide helps families 
develop their self-protection skills. 

The Scout Handbook is one of the most widely 
distributed Nx)ks in the world The pull-out guide 
also in included in the official USA Scoutmaster 
bandlxxik as is a chapter on the BSA s Youth 
Protection Program All told, more than 3-5 million 
copies of the Parent's Guide have been distributed 
by the BSA in just the first IS months of publication, 
making it perhaps the most widely distributed single 
piece of youth protection literature. 

After reviewing the materials available outside the 
BSA. the organization took an even bolder step with 
an educational video aimed at liovs ages 10 to 1-t. 
Called A lime to tell, the 29-minute educational video 
explores the problem of sexual molestation through 
the dramatization of several recognized risk factors: 
the presence of a stepfather: friends of the family: 
older youths who molest younger ones. The video, 
which is intended to be shown at any gathering of 
appropriate age youth, introduces what may Ix- a 
unique educational concept — The three Rs~ ot 
youth protection: 



* Resist attempts of child molesters. Resistance will 
stop most molestations, since very few molesters 
will resort to force. 

■ft Report individuals who attempt to molest you to 
your parents or other trusted adult. 

A "presenter s orientation" that runs just under 5 
minutes precedes the presentation of A time to tell 
More than 3.500 copies of the video were distrib- 
uted in the first year, and the BSA has encouraged 
duplication and even wider distribution of the edu- 
cational video, both within and outside ot Scouting 
It also has lx*en distributed by satellite to public and 
educational television stations across the country, 
which in many instances have aired it over their local 
and regional systems. Another educational video 
aimed at Cub Scouts (6- to 9-year-olds) was distrib- 
uted in the fall of 1991. A future protect will address 
adolescents, and that program will be coeducational. 



INTERNAL SAFEGUARDS 

While the BSA recognizes that there is no proven 
method for screening out potential child molesters, 
the organization has taken steps to create a hostile 
environment for them. These internal barners begin 
with the volunteer leader selection pr<xess The BSA 
throughout its long history has maintained that 
Scouting is essentially a local activity and that the 
sponsoring organizations and parents ot Scouts are 
in the best position to know and select their volun- 
teer adult leaders. The volunteer leaders ot the 
packs, troops, and posts (the scouting units i are 
selected by the I'nit Committee, with the concur- 
rence of the chartered organization. 

A standard two-part application form specifically 
asks whether the applicant has been arrested for 
child abuse or other crimes. The fonn also asks tor 
previous home addresses and references. A personal 
interview is required, and the application must Ix- 
approved by the head of the chartered organization. 

The BSA national office, as it has for more than 50 
years, also maintains a file on indiv iduals who tor 
various reasons are ineligible to Ix.' accepted into 
Scouting. All registrations are checked annuallv 
against the file. Although applicants conceivably 
might lie in answering the questions, the application 
form puts them on notice that the organization is 
aggressively hostile toward molesters. 



# Recognize strategies anil situations used by child 
molesters that can lead to attempted molestation. 



64 



Policies That Create Barriers 

In addition to the educational components, the 
USA has established policies that are intended 
to protect youth from child abuse. Examples of 
these policies are: 

* Two-deep leadership. Two registered adult leaders 
or one registered adult leader and a parent of a 
participant, one of whom must lie 21 years of age 
or older, are required on all trips and outings. 
The chartered organization is responsible for 
ensuring that sufficient leadership is provided for 
all activities. 

* Unaccompanied activities between an adult 
leader and a youth member are prohibited. In sit- 
uations that require personal conferences, such as 
a Scoutmaster's conference, the meeting must be 
conducted in view of other adults and youths. 

* Respect for privacy. Leaders are expected to 
respect the privacy of Scouts during activities 
that require changing clothes and dressing. 
Leaders also should protect their own privacy 
in similar situations. 

* Separate accommodations. When camping, no 
youth is permitted to sleep in the tent of an adult 
other than his own parent or guardian. 

if Proper preparation for high-adventure activities. 
Activities with elements of risk should never lie 
undertaken without proper preparation, equip- 
ment, supervision, and safety measures. 

* Appropriate attire is required for all activities. 
"Skinnv dipping." for example, is not appropriate 
as part of the scouting program 

* Secret organizations are prohibited All aspects of 
the boy Scout program are open to observation 
by parents and leaders. 

» Constructive discipline. Discipline used in Scout- 
ing should lx- constructive and reflect Scouting's 
values. Corporal punishment is never permitted. 

* Hazing is prohibited Physical hazing and initia- 
tions are prohibited and may not lx- included as 
part of any Scouting activity. 

* Junior leader training and supervision. Adult lead- 
ership must monitor and guide (he leadership 
techniques used by junior leaders and see that 
USA policies are followed. 



Prompt Reporting and Action 

Despite the lx*st efforts of adult leaders and parents, 
potential molesters still may succeed in getting 
through the net and incidents of child sexual abuse 
still may <xcur. because that possibility exists, 
youths are instructed specifically and unequivmally 
to report any incident immediately to an adult 
leader or other adult he feels he can trust. 

Any adult leader who receives a report of child 
abuse is required to notify the local Scout execu- 
tive immediately, and the executive is required to 
report the information to the local child protective 
services office and immediately remove the alleged 
molester from all Scouling-related activities until 
the case is resolved. 



Delivery System Is Key 

Perhaps the most important aspect of the BSA 
Youth Protection Program is the organization s highlv 
developed and effective delivery system. Once a 
program or policy is adopted by the national head- 
quarters, the people and systems are already in 
place to communicate and implement them at even 
level of Scouting. This well-developed delivery sys- 
tem enables the BSA to serve -t.l million youths and 
1.3 million adult volunteers in more than 130.000 
Scouting units across the country. Continuing 
reports from the field indicate that the Youth 
Protection Program has Ix-en implemented aggres- 
sively and enthusiastically by the 39" local councils 
and their chartered organizations, or sponsors. 



RESULTS 

The USA has no accurate statistics on the inci- 
dence of child sexual abuse in Scouting, but all the 
available indicators suggest that the problem is far 
less than in the population at large. At this point, 
there is only anecdotal evidence concerning the 
effectiveness of the BSA Youth Protection Program, 
but parents, volunteers, and youth strongly support 
it. As the BSA had hoped, the impact to some- 
degree has spread even beyond Scouting. In some 
cities, for example, local councils are actively work- 
ing with other youth-serving organizations to help 
them develop similar programs. In some cases, 
youths have felt encouraged to come forward and 
report molesters. In one Midwest city, for example, 
several youths turned in a molester after they 
watched the video. .1 time to tell. As a result, the 
local district attorney is now using the video with all 
victims of child sexual abuse seen there. 



65 



CONCLUSION 

In attacking the problem of child abuse, the BSA 
has implemented a multi-part strategy' that encom- 
passes the following key elements: 

1. Educating Scout volunteers, parents, and Scouts 
themselves to aid in the recognition, reporting 
and deterrence of child abuse. 

2. Establishing leader selection procedures to prevent 
offenders from entering the BSA leadership ranks. 

3. Establishing policies that create barriers for child 
abuse within the program. 



4. Encouraging Scouts to report improper behavior 
in order to identify offenders quickly. 

5. Swift removal and reporting of alleged offenders. 

The BSA also established a Youth Protection 
Advisory Panel, made up of five leading experts in 
the field of child abuse, to assist the organization in 
keeping the Youth Protection Program up to date. 

The BSA Youth Protection Program demonstrates 
that with committed leadership, a well-designed, 
multi-faceted strategy, an effective delivery system, 
and a tradition of discipline within the organization, 
today's youth service agencies have an important 
role in assisting their members in not becoming 
victims of sexual abuse. 



NOTE. Repnnl requests to Lawrence F Potts. Administrative Group Director, 
Boy Scouts ol America. 1 325 Walnut Hill lone, Irving. TX 75038 3096 



66 

Mr. Edwards. The last member of the panel to testify is Col. 
Thomas H. Handley, who is legal counsel, and with him is Renova 
Williams, director of personnel, Civil Air Patrol from Montgomery, 
AL. 

You may proceed. 

STATEMENT OF COL. THOMAS A. HANDLEY, LEGAL COUNSEL, 

CIVIL AIR PATROL 

Colonel Handley. Thank you, Mr. Chairman, and members of 
the subcommittee. We appreciate the opportunity to appear and 
testify. I will try to be very brief in my remarks. 

Many of the views that we have on this legislation have been an- 
nounced by Mr. Potts. The Civil Air Patrol is chartered by the Con- 
gress under title 36 as a Federal corporation. It also serves as the 
proud auxiliary of the U.S. Air Force. 

In its operations, it performs over 85 percent of all the inland 
search and rescue. It is now heavily engaged in counternarcotics 
activities, in passive surveillance and reporting; disaster relief, 
playing an active role in many of the disasters, including the floods 
that now plague the central part of this country. 

The third mission that we perform under the charter of the Con- 

fress is that of an active cadet program. We have over 20,000 ca- 
ets under the supervision of about 30,000 senior members. We call 
our adult volunteers "senior members". We are an all-volunteer 
program. We are funded under title 10 under the Armed Services 
Committee to a certain extent for logistics support. 

Civil Air Patrol has been involved in the child abuse issue for 
many years. In 1988, we began a program with the cooperation of 
the FBI to conduct a nationwide fingerprint screening program. We 
have been engaged in that program since then. And at the present 
time, all of our senior members are required to have a fingerprint 
submitted to the FBI. 

We have established a procedure within our organization to re- 
view the records, which includes both arrests and convictions. And 
we exercise a quality control review of those records and it has 
been a very valuable program. 

We greatly support the legislation. We would like to add that 
there are certain things that we would suggest it include, such as 
a provision to include arrest records along with convictions. 

It has been our experience that in certain individuals you will 
find a pattern of arrests for such things as indecent exposure or as- 
sorted type of sexual things with no disposition; and that indicates 
a pattern of sexual problems. I think if the legislation stops at only 
convictions, I think you will deprive the evaluators of a very valu- 
able tool in screening out people who are what we call the 
pedophiles. 

And we have found in our review of this subject, that there are 
some very, very dedicated pedophiles out there that infiltrate youth 
organizations, volunteers primarily, such as the NAMBLA, the 
Man-Boy Love Association, which operates under specific charter 
and they attempt to devise ways to infiltrate one organization after 
another to have sex with young boys. 

These organizations require a careful screening that I think this 
bill will help provide. 



67 

The other thing that we think the committee ought to consider 
is somehow permitting youth organizations, particularly the volun- 
teers, to exchange membership lists or lists of members who we 
have disqualified for sexual misconduct. Since these pedophiles are 
known to go from organization to organization, if we as the Civil 
Air Patrol have had a case where, although not prosecuted as a 
criminal offense, that we have shown that they are inclined to mo- 
lest a child, we keep a record of that. It would be very helpful if 
we would have the freedom to exchange that information with the 
other volunteer organizations. We think such a provision would be 
very helpful in the screening of pedophiles and the prevention of 
child abuse. 

I totally support or we totally support Mr. Potts' view that the 
bill will establish a new standard of care in this industry. I have 
had the responsibility for monitoring litigation of the few cases we 
have had. And they are devastating, because the parents of chil- 
dren who are abused now, in addition to prosecuting the individ- 
uals, have turned to civil remedies against the youth organizations; 
and under the plaintiffs bar, they have proceeded to have a whole 
series of theories of liability under which claims are made for neg- 
ligent employment and negligent retention. 

These cases are tremendously emotional and they have resulted 
in multimillion-dollar judgments, settlements and so on. I think the 
committee ought to know that the insurance industry at this time 
is rapidly withdrawing from this market. 

We are losing our insurance in December of this year for what 
they call SAME, sex and molestation exposure. The GL, or general 
liability, market has now determined that this is an unpredictable, 
unrateable type of risk that they simply don't want to cover. I 
think the end result is, if you cannot insure this risk, it will do 
many things to organizations such as put them out of business. 

And I think it would be well if this committee might look and 
see what the options are for organizations that want to continue in 
business when the insurance is simply not there. 

Our volunteers are not covered when they — if the insurance is 
simply not in place. So having said that, we support the legislation 
and would be glad to respond to questions. 

I think the committee may want to hear from Ms. Williams, who 
can respond and describe how we process the fingerprint cards and 
what the problems are on the turnaround time and so on. 

So at this time with the chairman's consent, I would like to have 
Ms. Williams address that. 

[The prepared statement of Colonel Handley follows:] 

Prepared Statement of Col. Thomas A. Handley, Legal Counsel, Civil Air 

Patrol 

Mr. Chairman and members of the committee: 

Thank you for the opportunity to appear before this Subcommittee to express Civil 
Air Patrol's views on the proposed legislation. 

Congresswoman Schroeder and cosponsors of this legislation are to be commended 
for their recognition of a serious societal problem and for their leadership on behalf 
of this nation s most precious commodity, its children and youth. Volunteer organi- 
zations such as CAP have long been concerned with protecting our youth from a va- 
riety of harm. This legislation will address, at least in part, a major concern of child 
abuse. We are greatly encouraged that this problem is now receiving attention at 
the highest levels. 



68 

Civil Air Patrol is a nonprofit corporation chartered by Congress. It is also des- 
ignated as an auxiliary of the United States Air Force. Congress has given CAP 
three nationwide missions in its corporate charter. They are (a) emergency services 
for communities, (b) aerospace education, and (c) operating a cadet program. Civil 
Air Patrol flies over 85% of all air search and rescue missions in this country each 
year in its Air Force auxiliary role. It now flies more hours on counter narcotics mis- 
sions than search and rescue. In addition, it assists states and local communities 
in natural disasters, such as the recent flooding in the central states. Our cadet 
(youth) program has a structure which exposes young people to discipline and train- 
ing that helps prepare them for careers in the military or civilian community. A sig- 
nificant number of each entry class at the Air Force Academy has prior CAP cadet 
training. Civil Air Patrol's membership consists of some 20,000 cadets between the 
ages of 13 and 18 and 34,000 adult volunteers. 

Civil Air Patrol has had a long-standing concern with the problem of screening 
its volunteer adult members who would interact with its youth, i.e., its cadets. The 
most significant method known to date was the examination of an individual's crimi- 
nal record. Civil Air Patrol first had an FBI fingerprint records screening program 
during World War II which continued until the early 1960s. That screening was not 
directly related to the youth program, but rather provided quality control over adult 
members generally. Civil Air Patrol resumed its FBI fingerprint screening program 
of adult members in late 1988 primarily as a result of concerns raised over its youth 
program as well as its counter narcotics activities. The national media has made 
everyone aware of the dangers involved in sex abuse of youth. 

In addition, CAP has, since 1991, participated as a member of the National As- 
sembly's Collaboration for Youth's Task Force on Child Sexual Abuse. One of the 
Task Force's objectives has been to seek effective ways to screen volunteer members 
working with children through collaboration with other national youth organiza- 
tions. Other members include the Scouts, Salvation Army, Big Brothers and Big 
Sisters, etc. 

Although not a panacea, FBI records screening is a valuable tool. For CAP, it was 
a national membership screening program that showed a clear policy of child protec- 
tion against those who had criminal records. 

Ironically, as the FBI screening program started, our long-time liability insurance 
carrier advised that it was excluding CAPs coverage for child sexual abuse. That 
carrier did not care whether CAP had an FBI screening program or not. It simply 
wanted to be relieved of that risk despite not having any claims. 

Civil Air Patrol implemented the FBI records screening for our senior member 
volunteers in June 1988, fingerprinting all new applicants and targeting current 
members working with cadets for initial fingerprinting, eventually expanding 
screening to all members, regardless of their duty positions. We also imposed a dues 
assessment of $10.00 per member for a legal defense fund to sustain possible losses 
resulting from child sexual abuse litigation no longer covered by our liability insur- 
ance ana to absorb the cost of additional corporate employees hired to process fin- 
gerprint cards. 

Since implementation, CAP has received over 61,000 fingerprint cards from our 
CAP volunteers. Over 55,000 cards were forwarded to the FBI for screening. The 
6,000 number difference is the number of cards we returned to the members for il- 
legible prints, incomplete information, etc., which were not returned to us. We know 
we lost 6,000 members who simply would not go to the trouble to get fingerprinted 
a second time or return corrected cards. This does not include the thousands who 
simply decided it was too much trouble and dropped out of the 
program. 

Of the 55,000 cards sent to the FBI, some 3,600 were "hits," that is, they had 
records of some sort on file at the FBI. Offenses ranged from DUIs and youth mis- 
demeanors by currently responsible citizens to rape and first degree murder. Out 
of the 3,600 records, 122 were determined to be unfit for membership in Civil Air 
Patrol — 70 of these were for sex offenses. We were obviously gratified to identify 
this number of potential child abusers. The unknown, of course, is the number of 
sex offenders not identified because they elected not to be members rather than risk 
identification. Unfortunately, they may have gravitated to other youth organizations 
which do not yet have access to criminal records. 

On the downside, the FBI fingerprint screening program caused a significant loss 
of membership in both adults and cadets: the cadets, because of the increased dues, 
and the adults because of that and other reasons such as privacy. Both the member- 
ship loss and the uninsured exposure caused CAPs Board to seriously consider dis- 
banding the cadet program. But they made the decision to retain the cadet program 
and attempted to seek means of improving membership screening techniques and 
established relationships with other youth programs facing similar problems. 



69 

The Boy Scouts, in particular, were of tremendous assistance, to the extent of 
sharing their very excellent video training tapes on child sexual abuse. These tapes 
are now an integral part of CAPs training programs. Our collaboration with the Na- 
tional Assembly^ Task Force has also been invaluable in identifying problems and 
seeking remedies for our common problems. The Assembly has been a true leader 
in identifying screening issues and methods. 

At this point, we would like to make some specific comments on the proposed leg- 
islation. Section 3 "Background Checks," when implemented, will for all practical 
purposes establish what lawyers call a "standard of care" for the business of child 
care. That standard will apply to volunteer organizations as well as for profit. The 
problem is that the legislation will make FBI checks available, but it will not pro- 
vide funding for the organizations to pay for those checks. The first year of FBI 
services for CAP was free. Then, Congress required the FBI to charge users. The 
$17.00 charge per record was ultimately funded from Congress because of CAPs 
other federal activities, such as counter-narcotics missions. It now costs $160,000 
per year and that only covers new members. Other youth organizations or child care 
providers will have to pay $23.00 per record according to current fee schedules. 

Some experts say all members should be rescreened every five years, but CAP has 
yet to adopt that requirement. Other volunteer organizations may well be unable 
to pay for obtaining these records. Yet, if they do not avail themselves of the infor- 
mation and a convicted sex offender molests one of the children, it will simply put 
them out of business. In a phrase, the legislation is establishing a standard tnat 
organizations cannot afford to ignore and may not be able to afford financially. 

Also, CAP urges that the records on offenders be expanded to include arrests. Our 
experience with FBI records has been that some sex offenders have arrests that 
have no disposition simply because the family didn't want to press the case. If 
records are to be available, make it complete with arrests. Judgment by those re- 
viewing them will be the key to using them correctly. 

We also urge the Committee to consider including a provision for youth organiza- 
tions to freely exchange lists of adults excluded from membership because of sexual 
misconduct, particularly with young people. Experts will tell you that pedophiles 
will go from one youth organization to another. Legal considerations have to date 
made this impractical. If the Scouts have identified a pedophile, it makes no sense 
not to have a free exchange of this information to keep them out of other 
organizations. 

The insurance consequences of this legislation and of the whole area of sex of- 
fenses with children should be examined very closely by the Committee. The cov- 
erage term is "SAME" which stands for Sex and Molestation Exposure. The plain- 
tiffs' bar has used the legal theories of "negligent employment" and "negligent reten- 
tion" to make large claims against youth organizations which have experienced a 
molestation case involving a volunteer or adult employee with a child in their care. 
The emotions of these cases have resulted in multi-million dollar awards for chil- 
dren and their parents — not against the molester, but rather against the organiza- 
tion that somehow should have known about him or her. Not only criminal records 
are used to prove that knowledge. These large awards have convinced many large 
insurers that this risk should be excluded from General Liability coverage. Cov- 
erage, if it exists today, rests in the "specialty market" with high self retentions, 
i.e., deductibles. The legislation establishing the new standard of care and the insur- 
ance market's withdrawal of coverage may drastically affect many organizations' 
ability to continue to provide child care at all. Without insurance coverage, individ- 
ual volunteers may not be available. It is clear that large organizations such as the 
Scouts, Big Brothers/Big Sisters, and local church youth groups would be attempting 
to serve. 

Civil Air Patrol has been advised that it will lose its SAME coverage effective in 
December 1993. Unless replaced by some company, we will again face the issue of 
continuing the cadet program. 

Another problem with screening in many organizations is timing. Civil Air Patrol 
deals directly with the FBI and it customarily takes from 45 to 60 days to receive 
responses to our fingerprint requests. While this works, after a fashion, for Civil Air 
Patrol, it would not be practical for many youth organizations using volunteers for 
short periods, such as Little League teams, YMCAs, and youth camping groups. 

Again, we support this legislation and hope these comments provide some useful 
suggestions for changes as it makes its way through the Congress. 

Thank you again for the opportunity to provide this testimony. 

Mr. Edwards. Yes, we would appreciate hearing from Ms. 
Williams. 



70 

STATEMENT OF RENOVA WILLIAMS, DIRECTOR OF 
PERSONNEL, CIVtt, AIR PATROL, MAXWELL AIR FORCE 
RASE, MONTGOMERY, AL 

Ms. Williams. Mr. Chairman, we do appreciate the opportunity 
to be here. And I feel a particular appreciation for what you are 
doing in that when we started wrestling with this problem of crimi- 
nal records screening back in 1986, 1987, we felt lost. We were al- 
most like a voice in the wilderness. 

We didn't have anywhere to go. And it was through the collabo- 
ration of some of the youth organizations that we found that they, 
too, face similar problems. Ana, of course, we made what I consider 
some very difficult decisions as an organization. 

We predicted, and rightly so, that — we projected membership 
losses, significant membership loss as a result of our implementing 
the criminal records check. What this meant to our organization, 
which is already a small organization, we went down from some 
73,000 members to — we stand at 55,000 at this time. We never 
quite recovered. There are other reasons. We experienced some 
other things like recessions and other reasons for membership 
losses, but in particular, we could correlate some of our losses of 
volunteers with the implementation of this check. 

Our organization said, we believe that we have to make a tough 
decision, Dut we need to save our cadet program, our youth pro- 
gram. With that in mind, that decision was made. We have paid 
for that decision membershipwise, if you would. 

Some of our volunteers are good people. They are people that 
wanted to help the children and they wanted to volunteer and, 
frankly, at the time they were offended at being asked to submit 
to this. We took upon ourselves an extensive education campaign 
to explain to our membership. And now they are beginning to see 
the things that we were talking about in 1988, you are discussing 
here today. 

It took us a number of years and a number of very difficult deci- 
sions, especially when we are probably faced with losing insurance 
and not knowing if we can keep our cadet program. But we were 
able to do that. 

We tried to be a good customer to the FBI because we recognized 
that they took us on and we are very fortunate to have access 
through that, not just because of our youth-serving role, but be- 
cause of some of our other Federal assistance roles. But in so doing, 
it takes us typically 45 to 60 days — and we are a paying customer. 
Those are with user fees — to have a turnaround. We have been to 
the FBI headquarters and we have seen the workload and their 
challenges and we know what they are going through. We try to 
understand; to be a good customer to them. 

But at the same time, from the time that a fingerprint card is 
processed out in one of our communities, it is sent to our national 
headquarters for review to make sure that it is legible and we can 
give it to the FBI in a form that they require, and we take it from 
our headquarters in Montgomery, AL, and return it to the FBI; it 
could be a good 45 to 60 days. 

This works for Civil Air Patrol after a fashion in that ours is a 
long-term membership, but some of these organizations have a 
short-term membership and perhaps it would not work for them at 



71 

all because by the time that is received or returned to them, their 
need would have expired. 

These are some of the things that I would like to leave with the 
committee. We appreciate your work so much because we have 
been doing this for some time now. We need to let you know that 
well-intended, good volunteers simply dropped out of the program. 
And keep in mind they didn't have to pay the user fee. That was 
paid for them. 

So if you could imagine the Scouts and some of the other organi- 
zations if they had to pay the user fee, there could be a more sig- 
nificant loss of membership. We appreciate Congressman Schroe- 
der's efforts in this area and all of the committee's pioneering what 
we consider to be a problem for a long, long time. 

Mr. Edwards. We thank all members of the panel. They have 
provided us with some valuable information and suggestions. 

Mrs. Schroeder. 

Mrs. Schroeder. I thank you, too. Mr. Swann, you are abso- 
lutely right. This is a baby and we need to see how it grows. 

And we know it is not the whole solution to this terrific problem. 
But your discussion about the insurance risk, I think is a very seri- 
ous one. We would certainly hate to see voluntary agencies shut 
down. 

Has anybody ever communicated with insurers? 

Would this type of legislation or this type of work at the national 
level be any way that they could start reinsuring people? 

I mean is there anything that we could do to lessen the risk or 
the exposure they are feeling? 

Colonel Handley. Mrs. Schroeder, we have talked to a number 
of insurers. We are in a position of offering a problem without a 
resolution. But the general liability market simply didn't know how 
to handle this risk. 

It is not an automobile accident with so many statistics to it. It 
is too emotional and the jury verdicts range in the multimillion-dol- 
lar area. And many of the underwriters simply don't know how to 
evaluate the risk. The general liability market is withdrawing. 

The specialty market is to a certain extent remaining. But if a 
youth organization has a verdict, you can almost count on a with- 
drawal from the market from your coverage the following year un- 
less you are willing to accept the first $10 million of coverage in- 
side, which we are not, or some type of high deductible. 

So I don't know the answer. But it is definitely with the bill es- 
tablishing a level of care or a standard of care where youth organi- 
zations had better check the records, or if they don't and an indi- 
vidual has an offense on the record, why the punitive damages are 
almost certain to follow if they are very difficult cases. 

Mr. Swann. If I may, I would like to say that from our perspec- 
tive at Big Brothers and Big Sisters we find that not to be the case. 
Our insurance carrier reviewed our policies and standards through- 
out the country and is satisfied with our procedures. And we have 
received a rebate in terms of the cost of our insurance. 

So I would offer that while the insurance companies will take a 
very hard and long look at the organization and the liabilities, cer- 
tainly, the policy, our standards and practices and how you operate 



72 

and proceed from a grassroots level all the way to a national office 
has a great deal to do with that. 

And as strong a measure as we could have from Congress in 
terms of a bill to protect children, it is only going to be as strong 
as the reporting mechanisms that we have at our individual agen- 
cies. If our agencies have cases of child abuse or neglect within our 
organization and do not report it, then it doesn't matter what kind 
of records we keep or what system or how much money we have 
in place to carry out this goal. If we don't report it, then no one 
knows. 

In our organization, the average age of our volunteer is 35 years 
old. And we have a lot of people in the service who are involved. 
That means they are doing a lot of traveling, whether for profes- 
sional reasons, they decide to move, get married, change their life, 
they cross State and county lines and they move on. And you have 
to have a system of reporting that allows you to have that. 

So it does begin with that local agency and if it is not a strong 
policy at the local executive director, those volunteers do not report 
any incidents to the State social services or to legal authority. If 
it gets to that point or to our own national office, then it is a failed 
program. 

So we believe that what we need is a strong program that the 
Government supports and stands behind. And we need to ensure 
that each agency is doing more than their share to make sure that 
the system is in place. 

Mrs. Schroeder. You are absolutely right. 

Mr. Edwards. Has your organization been sued? 

Mr. Swann. Our organization has been sued. As I stated before, 
one of every six volunteers that come comes through our door be- 
comes a Big Brother or Big Sister. Some have settled and some 
have gone through the entire process in the court and we have lost 
some of those, but we still continue to get volunteers and we con- 
tinuing to grow. 

Colonel Handley. If I may respectfully disagree with Mr. Swann. 

I think if the committee would look into the insurance market it- 
self independently, just ask the general questions of the market- 
place about the same risk, I think you will find what we are sug- 
gesting is accurate; that — I mean, CAP is considered one of the 
Forefront people in the fingerprint national screening program. 
Very aggressive. 

And we simply have a terrible time in convincing underwriters 
that with the youth program we have, that the SAME risk should 
be covered. Many of the carriers will give you a $25,000 token cov- 
erage just so there is no discrimination issue involved in issuing 
policies, but that is nothing in the way of coverage. 

And then there is the other thing. Perhaps a certain level of pre- 
mium you might be able to insure this risk, but out of CAP'S $1.4 
million dues revenue, the insurance liability program takes almost 
$800,000 of our revenue as it is and part of it is for our aircraft 
fleet, but the other half is for the general liability. So we simply 
can't afford the risk any worse than it is. 

Mrs. Schroeder. That is very interesting. And the Boy Scouts 
don't have this problem and don't think that the fingerprinting is 



73 

necessary? I mean, how have you been able to screen and avoid 
this problem? 

Mr. Potts. The Boy Scouts has always encouraged organizations, 
like churches, to choose members in their community, members in 
their congregation, members who they know. Most of these mem- 
bers, and by far the majority of these members, have kids that are 
in the program. They are mothers and fathers who are going 
through the program with their youngsters. 

We nave an application form that asks for references. We have 
an application form that requests to know where you have lived 
over a certain period of time and who you have worked for. But we 
do not, under most circumstances, require that individual to get a 
fingerprint check. 

In fact, in most States, you can't just walk down to our station 
and get one of those. So we use — we know the leaders that we are 
selecting. They come out of the community they are serving in. 
They fill out extensive background applications, and are chosen in 
that matter. 

With regards to insurance, we think the insurance market is 
very spotty. There are companies which are pulling out. 

I am not an expert and up on the minute on knowing what com- 
panies are writing and what companies are not writing and I can't 
give you very much information on that; I am sorry. 

Mrs. Schroeder. Do you have a profile of what you think is a 
trustworthy volunteer that has worked for you and has not caused 
any problems? I mean, you can figure this out without any help? 

Mr. Potts. Unfortunately, experts have told us that there is no 
profile, there is no way in advance that you can be assured. 

Mrs. Schroeder. That is what they have told us, too. I thought 
maybe you have found the key to unlocking all of this. 

Mr. Potts. We also rely on our training program as I talked to 
you about. There are going to be some people — pedophiles may 
nave children, may be married. People who we would like to get 
into our leaders would come out of the community and would be 
known in the community, would have roots in the community, 
would be married and would be fathers of kids in the program. 
Those are the people who primarily that we have. 

But there are going to be some who do get into the program. And 
the education program that we have really cooperated on, I mean 
have really pushed in the last several years, goes directly to kids. 

We try to seek empowerment to children so the children know 
what's happening to them, so that the children can spot the 
allurers. We try to teach parents how to protect their kids from 
child abuse and we talk to volunteers; we have programs for 
volunteers. 

So, we try and protect, as I am sure all of these organizations 
do, we try and protect the people who are in the program by 
empowerment should a pedophile get into the program. 

Mrs. Schroeder. Very interesting. Again, I thank the panel, and 
consider the window open. Any ideas that you have for what we 
can do to make this more usable or better or more accessible? And 
I think your point about the local agency doesn't follow through, it 
never works. So we have to find a way that we are working from 
the top-down and the bottom-up and everywhere in between. 



74 

Thank you very, very much. 

Mr. Edwards. I thank you all very much, also. 

You have not only been splendid witnesses, but you have given 
us some valuable suggestions. We are going to go over these sug- 
gestions, I will with Mr. Hyde and counsel and the other members 
of the subcommittee, and we will not necessarily accept all of them. 
Some of them will be a matter of committee decision. 

But the bill will be marked up and approved in the next few 
weeks. We hope, as I said in my opening remarks, that it will be 
a part of the crime bill that is being presently written. If it is not, 
or if something happens to the crime bill and it doesn't make it, 
we intend to take it to the House of Representatives as a freestand- 
ing bill all by itself and encourage our colleagues in the Senate to 
do the same. 

And I know that the President of United States endorses the bill. 
So we expect to move it along and have it in the Rose Garden cere- 
mony. I hope that all of you come when the bill is signed in just 
a very few months. 

Thank you. 

Mrs. Schroeder. Thank you, Mr. Chairman. 

Mr. Edwards. The subcommittee is adjourned. 

[Whereupon, at 11:35 a.m., the subcommittee adjourned, to re- 
convene subject to the call of the Chair.] 



75 

APPENDIX 



HARPO. INC. 



Material Submitted for the Hearing 

HARPO 



1 10 North Carpenter Street 
Chicueo. Illinois 60607 
312.633.1000 Fax 312.633.1111 

Oprah Winfrey August 2, 1993 

Chairman ol the Board 



The Honorable Don Edwards 

Chairman 

Subcommittee on Civil and Constitutional Rights 

Committee on the Judiciary 

U.S. House of Representatives 

Washington, D.C. 20515 

Re: Hearing on the National Child Protection Act of 
1993 
Dear Mr. Chairman: 

I write to express my continued strong support for H.R. 
1237, the National Child Protection Act of 1993. I am extremely pleased 
that the Subcommittee on Civil and Constitutional Rights held a hearing 
on July 16 to consider the legislation, and I am hopeful that this hearing 
will lead to the quick enactment of the Act. 

I understand that, although all of the witnesses expressed 
support for H.R. 1237, some technical concerns were raised at the hearing. 
To assist the Subcommittee in addressing these concerns, I have asked my 
legislative counsel in this matter, Governor Jim Thompson, to prepare the 
attached comments on my behalf. Please call upon Governor Thompson 
or his staff if they can be of further assistance. I ask that this letter and 
the attached comments be included in the record of the hearing. 

As you may recall, you and I met to discuss a draft of this 
legislation in November, 1991. I am sure you share my frustration that 
other issues have prevented Congress from enacting this necessary 
measure. Although much more needs to be done on the whole range of 



76 



child abuse issues and programs, H.R. 1237 would greatly help prevent 
one of the most preventable forms of child abuse ~ abuse outside the 
home by those already convicted of child abuse or other serious crimes. 
I urge the Congress to act as quickly as possible to put this important 
protection in place. 

Again, thank you for your unceasing efforts to protect our 
nation's children. 



Attachment 




77 



BEFORE THE SUBCOMMITTEE ON CIVIL 

AND CONSTITUTIONAL RIGHTS 

OF THE COMMITTEE ON THE JUDICIARY 

U.S. HOUSE OF REPRESENTATIVES 



COMMENTS ON BEHALF OF OPRAH WINFREY 

ON H.R. 1237, 

THE NATIONAL CHILD PROTECTION ACT OF 1993 



* • * * 



Washington, D.C. Counsel to Ms. Winfrey: 

August 2, 1993 

Governor James R. Thompson 
Edward F. Gerwin, Jr. 

Winston & Strawn 
1400 L Street, N.W. 
Washington, D.C. 20005 
(202) 371-5700 



78 



COMMENTS ON BEHALF OF OPRAH WINFREY 

ON H.R. 1237, 

THE NATIONAL CHILD PROTECTION ACT OF 1993 

On behalf of Ms. Oprah Winfrey, we appreciate the opportunity to provide the 
Subcommittee on Civil and Constitutional Rights with the following comments on H.R. 1237, the 
National Child Protection Act of 1993 (the "Act"). These comments address specific concerns 
voiced at the July 16, 1993, hearing on the Act. 

As a general matter, we note that many of the specific concerns raised at the recent 
hearing -- such as the overall accuracy of criminal records and the availability of insurance -- 
involve matters beyond the scope of the proposed legislation. Although H.R. 1237 will provide 
incremental help in addressing these difficult problems, Congress must also undertake broader 
efforts to address these important and longstanding issues. In the meantime, Congress and the 
Administration must work to implement the Act in the current environment. Our nation's children 
should not be subjected to preventable instances of child abuse. 

l. The Accuracy of Criminal History Records 

At the hearing, the Federal Bureau of Investigation and others expressed concern 
over the accuracy and currency of criminal history records. In particular, it was noted that a 
substantial percentage of criminal records lack up-to-date disposition information. 

The concern with the accuracy of background check records is certainly appropriate. 
In view of the importance of accurate criminal history records for background checks under H.R. 
1237 and current statutory schemes, as well as for law enforcement in general, the Federal 
Government and the states should devote the resources required to update and improve these 
important records. 

Inaccurate or incomplete criminal history records could have serious consequences 
for those individuals whose backgrounds are searched. H.R. 1237, as currently drafted, addresses 
this concern by establishing strong protections for the individual. The Act includes detailed privacy 
provisions and an expeditious procedure to permit individuals to challenge and refute inaccurate or 
outdated information in a background check. 

The lack of current disposition information on many criminal history records may 
unduly narrow the information available for background checks if such checks are limited solely 
to convictions. Consequently, the Subcommittee should consider amending section 3(a) of the 
current bill to permit background checks to include arrest information. 1 ' 

The well-being of our nation's children requires the prompt implementation of a 
nationwide criminal history background system and concurrent efforts to improve the accuracy of 
criminal records. As current state experience has shown, improvements in background check 
systems - even with the current systems of records - will reduce the number of children wounded 
and threatened by child abuse. 

n. Burdens on t he States and Voluntary Organizations 

Witnesses at the hearing noted that the Act will place financial burdens on the states 
and voluntary organizations. The National Conference of State Legislatures noted that the 



At the hearing, the Civil Air Patrol (the "CAP") supported the inclusion of both 
convictions and arrests in background checks covered by H.R. 1237. The CAP, which 
has had substantial experience with a background check program, noted that a pattern of 
arrests is often a good indication of a potential to abuse children. We support the 
inclusion of both arrests and convictions as the best means to assure the protection of 
children. 



79 



$20,000,000 which would be authorized to implement the bill would not be sufficient to update the 
records of the various states. Witnesses from voluntary organizations stated that the Act would 
burden their organizations if a fee is assessed for each check. 

As noted above, accurate criminal records and efficient records systems are required 
for a whole range of law enforcement reasons. H.R. 1237 provides incremental financial help to 
improve such records and systems. Other funding must, however, come from other sources For 
example, if a firearms background check system is implemented. Congress must authorize and 
appropriate substantial, additional funding to improve records and systems. We encourage the 
federal government to work with the states to find the resources to make this program work. 

To reduce the financial burdens on voluntary organizations, the Federal and state 
governments should consider flexible payment requirements for background checks. Those 
organizations and individuals that are able to pay for background checks should be required to do 
so. Other organizations, particularly volunteer groups, may find the costs of background checks 
to be prohibitive. Sliding scales could be implemented to allow certain organizations to pay a 
reduced rate for a background check. In addition, banks and other for-profit organizations and 
individuals subject to firearms background checks might be assessed a small fee for each 
background check. This fee could fund child care background checks for deserving 
organizations. 27 

m. Access to Background Check Information 

Concern was expressed at the hearing about the privacy implications of providing 
background check information directly to qualified entities under the Act. As Chairman Edwards 
noted, however, such information is already provided to banks and similar organizations under 
current law. Moreover, as noted above, H.R. 1237 contains strong privacy protections. 

If, despite these considerations, the Subcommittee believes that background check 
information should not be shared with qualified entities, an alternative exists. As set forth in the 
original draft legislation presented by Ms. Winfrey in 1991 , qualified entities could require potential 
volunteers and employees to provide a written summary of any past crimes. This information could 
then be supplied to the state agency, which would check it against criminal records and either 
confirm the accuracy of the information supplied or report that a discrepancy existed. The 
responsibility would then rest with the qualified entity to clarify any discrepancies with the applicant 
and to resubmit corrections to the state agency. Although this alternative may involve more steps, 
it ensures the same result - child protection. 

IV. Evaluation of Background Check Information 

Some of the remarks made at the hearing suggested that the Act required the state 
agencies conducting background checks to determine whether an individual should be offered a 
child care position within an organization. This is incorrect. 

As currently drafted, H.R. 1237 leaves to the organization requesting the search the 
decision whether to offer an individual a position (paid or volunteer). Although many states have 
specific fitness criteria for narrowly-defined classes of child care workers, the states are not 
equipped to conduct screening for other purposes, particularly for voluntary organizations. Each 
such organization must be free to determine, on the basis of many relevant factors, whether an 
individual would make an appropriate volunteer or employee. In some situations, for example, the 
entity may determine that a person who has committed a background check crime can, nonetheless, 
make a valuable contribution to the organization, possibly in a position which allows only 
supervised time with children. 



v A number of voluntary organizations noted that requiring background checks would 

discourage volunteers from participating in their organizations. We would hope that, by making 
background checks more routine and by emphasizing the importance of such checks, H.R. 1237 
would help prevent the loss of volunteers. 



80 



V. Broad Coverage of the Act 

At the hearing, Congressman Canady questioned whether the Act was intended to 
include ajl child care providers and reach so broadly that it included "sunday school teachers. " In 
addition, representatives of the Boy Scouts suggested that the Act should not cover voluntary 
organizations. 

It is essential that the Act have broad application. The problem of child abuse is not 
confined to day-care centers. It has crept into every type of child care situation - public and 
private schools, summer camps, volunteer organizations ~ even church youth programs are not 
immune from the risk of child abuse. According to Andrew H. Vachss, a nationally-recognized 
expert on child abuse, predatory child abusers often seek access to children in voluntary 
organizations. This frightening fact was reiterated at the hearing by the Civil Air Patrol. Child 
abusers have formed deviant societies whose sole purpose is to locate and infiltrate voluntary and 
other organizations which allow them unsupervised contact with children. 

In considering the broad coverage of the Act, it is important to bear in mind that 
participation in the Act's background check system is purely voluntary ; the Act does not require 
organizations to conduct background checks. The Act merely makes background checks available 
to qualified organizations. Sunday schools and Boy Scout troops that believe that they can protect 
against child abuse without resorting to background checks would remain free to do so. The 
Subcommittee must assure, however, that the widest possible variety of organizations have the 
option to seek nationwide background checks.-' 

VI. Insurance and Liability 

A final concern raised at the hearing involved the difficulty some volunteer 
organizations are experiencing in their efforts to obtain Sexual and Molestation Exposure coverage 
("SAME"). According to these organizations, the insurance industry is currently unable to assess 
the risks of sexual molestation within child care organizations. 

Although this important problem goes beyond the scope of the Act, the Act should 
provide some help in addressing the insurance issue. The Act will ensure more accurate and 
consistent reporting of sexual abuse incidence, thereby providing insurance companies with a better 
means to evaluate the risk. In addition, organizations that take advantage of the Act's procedures 
will reduce their potential exposure for incidents of child abuse. 

VII. Conclusion 

As Congresswoman Schroeder noted at the hearing, it is currently easier to track 
stolen cars than to screen for potential child abusers. The National Child Protection Act of 1993 
seeks to correct this unfortunate imbalance. On behalf of Oprah Winfrey, we look forward to 
working with the Subcommittee to resolve any technical concerns and to assure the prompt passage 
of the Act. 

Washington, D.C. Counsel for Oprah Winfrey: 

August 2, 1993 

Governor James R. Thompson 
Edward F. Gerwin, Jr. 

Winston & Strawn 
1400 L Street, N.W. 
Washington, D.C. 20005 
(202) 371-5700 



Many volunteer organizations, such as the Civil Air Patrol and Big Brothers/Big Sisters, 
have already designed and implemented child protection programs which incorporate 
currently available background check systems. Other organizations should have this 
option. 



81 



Vigilant in the Protection of Our 
Children or Vigilantes? 

Legal Considerations in Drafting Screening Laws 

and 
Recommendations for Safeguarding Children 
In Child Care Settings 



Prepared by: 
Abby J. Cohen 
Managing Attorney 
Child Care Law Center 
625 Market Street, #815 
San Francisco, CA 941C5 
(415) 495-5498 



© 1985 Child Care Law Center, 
a special project of the 
San Francisco Lawyers' Committee for Urban Affairs 



82 



I. Introduction 

During the past year, allegations of child abuse, particularly 
child sexual abuse, have garnered widespread media attention. 
While statistics gathered nationwide indicate that an overwhelming 
82% of child abuse is committed by family members and experts 
acknowledge the importance of child care in the prevention, 
detection and treatment of child abuse, * most of the publicity 
has focused on allegations of abuse occurring in child care 
settings. These allegations have prompted legislators, parents, 
child care givers and licensing officials to seek more effective 
strategies to protect children in child care. While few would wish 
to detract from attention which raises the public consciousness 
about the seriousness and prevalence of child abuse, nor criticize 
good faith legislative efforts to protect children, thus far the 
consequences of media and legislative attention are not all 
salutary. 

Too frequently, the media maligns child care generally, never 
emphasizing its positive aspects. Such coverage usually discounts 
or ignores the dedication of thousands of child caregivers who 
provide an essential service to children and their parents in the 
face of low wages, long hours and little recognition for the 
importance and difficulty of their work. Additionally, such 
coverage also tends to shower guilt on parents who already face 
conflicts because of the lack of accomodation our society has made 
for working parents. 



83 



Similarly, many legislative responses focus only on screening 
out criminals or stiffening criminal penalties for offenders. In 
many states, criminal record history screening has been put into 
place without the thorough consideration such measures require. 
Additionally, little attention is given to a cost/benefit analysis 
of screening. Recent statistics from New York City, similar in 
result to California statistics, reveal that less than 1% of those 
screened had prior felony convictions. 2 Most importantly, 
attention is diverted from measures which are already proven or 
have the potential to expand and improve child care programs, 
thereby reducing the risks of improper or inadequate care. 

One of the responses to allegations of child abuse in child 
care settings was the passage of P.L. 98-473. The paper which 
follows: 1) describes P.L. 98-473, 2) sets out the legal and 
non-legal aspects which ought to be considered in drafting a 
national criminal record screening law which complies (and/or goes 
beyond) the requirements of P.L. 98-473, 3) sets out considerations 
in developing laws or regulations dealing with employment history 
and background checks and 4) concludes with a list of 
recommendations for avenues other than screening to prevent child 
abuse in child care settings and to provide better regulatory 
enforcement once child abuse is suspected. 

II. P.L. 98 - 47 3 

As currently written, P.L. 98-473 requires states, in order to 

obtain their full Title XX appropriation, in FY 1986 or 1987, to 

have in place by September 30, 1985, procedures, (through law or 

regulation) to provide for employment history and background checks 



84 



and a statute which provides for nationwide criminal record 
checks. These checks are to be done on current and prospective 
operators, staff and employees of "child care facilities (including 
any facility or program having primary custody of children for 20 
hours or more per week) and juvenile detention, correction or 
treatment facilities." No further guidance is given. 
III. DEVELOPING A CRIMINAL RECORD SCREENING LAW 
A . Why a model statute and regulat i ons are not provided here * 
After attempting to construct a model state statute for the 
national criminal record screening of child caregivers which 
would be in compliance with P.L. 98-473, it became apparent 
that this would not be possible for three reasons. The 
reasons are: 

1. DHHS has chosen not to clarify programs and activities to 
be regulated within the meaning of P.L. 98-473, but has 
left this to the discretion of the states; (see Federal 
Register, January 15, 1985 p. 2090). 

2. the wide variation among states regarding which child 
care and juvenile programs are regulated, to what degree 
and by whom; 

3. a desire to distinguish what is required by the law, what 
is optional but desireable, and what is undesireable . 

1 . Amending e x isting legislation 

P.L. 98-473 requires screening of a variety child caring 
institutions all of which may not be regulated 



* The Child Care Law is available, for a fee, to provide technical 
assistance in the drafting of screening statutes tailored to th- 
needs of individual states and in compliance with P.L. 98-473. 
Contact Abby Cohen, Managing Attorney, Child Care Law Center, 625 
Market Street, Suite 815, San Francisco, CA 94105. (415) 495-5498. 



85 



under the same state law. Consequently, states will 
either have to pass a law amending all of these 
regulatory schemes, amend each law individually, or if 
they are fortunate and all forms of employment covered by 
P.L. 98-473 appear in one law, amend only that. 
Additionally, they may have to amend the laws in their 
states governing the state agency which does criminal 
history checks to authorize that agency to send 
fingerprints to the F.B.I, and to share information it 
has, and information it receives from the F.B.I, with the 
pertinent regulatory agency which will make the 
employment decisions. * 

2. Definition of those programs and providers of care 
covered 

In order to comply with P.L. 98-473, and P.L. 92-544, all 
staff, operators and employees of defined programs need 
to be explicitly identified in the statute. Each state 
must determine what types of child care facilities exist 
in its state which have primary custody of children for 
20 or more hours per week and which programs operate 
which can be considered juvenile detention, treatment and 
correction centers. While monies under P.L. 98-473 are 
limited to the training of licensed or registered 
providers of child care, operators and staff of licensed 
or registered child care, licensing and enforcement 
officials and parents, the definition given for those 
programs and providers covered in the screening mandate 
is not similarly limited. At the very lea st, in the area 
of child care , a law should cover anv regulated (whether 
licensed, certified, registered or approved) child care 
program which operates for 20 hours or more per week. 
Each state also should address the following concerns: 

a. whether the statute also should include: public/private 
schools, foster care and forms of regulated child care 
which operate for less than twenty hours per week. In 
addition, when care takes place in a home, consider 
whether adults (other than the provider) residing in the 
home should also be screened. This is not required under 
P.L. 98-473. 

b. how it plans to deal with substitutes and 
volunteers . Depending upon how one defines "employees" 
under the statute, substitutes and volunteers may be 
employees or they may not be. Even if they are not 
considered employees, a state may still choose to screen 



* It is the author's contention that the regulatory agency, not an 
operator should be receiving this information and making employment 
decisions. For reasons why, see section 4d below. 



86 



volunteers. California takes a middle ground. Its law 
provides: "...In determining who has frequent contact, 
any volunteer who is in the facility shall be exempt 
unless the volunteer is used to place [sic, replace] or 
supplement staff in providing direct care and supervision 
of children in care. ...This section does not apply to 
adult volunteers or adult staff employed by the applicant 
on an intermittent basis for less than 10 days per month, 
provided that these adults are under constant supervision 
by adults who meet the requirements of this section." 

Substitutes may need special provisions so they do not 
have to be cleared over and over again at different 
programs. On this point California law provides: 

".... For the purposes of compliance with this section, 
the department may designate a child care resource and 
referral agency or other agency in each county to 
maintain a file of criminal record clearances [as 
previously defined] , for individuals employees on a 
temporary basis by applicants in that county." 

c. Unnecessary Duplication : Possible special provisions so 

that persons like public school personnel who may already 
have been screened recently (it may be desireable to 
place a time limit on how long ago clearance occurred) do 
not need to undergo screening again if they now seek 
employment as child care providers. 

3. Need to cover current and prospective operators , staff . 

To avoid an enormous deluge of checks to be done when the 
law becomes effective it is desireable to phase the 
program in. A recent bill proposed in Arizona does 
this. 3 when the law becomes effective, hiring of all 
prospectiv e operators, staff and employees will be 
conditional on clearance but current operators, staff and 
employees will be checked when their own license or their 
employer's license is up for renewal. 

4 . Adopting a clearan ce procedure 

Beyond defining who is to be checked, the statute should: 

a. specify when checking will be done . When a prospective 
operator is to be checked, fingerprints should be 
submitted at the time of application for licensure. 
Depending on the length of time required for processing, 
states may either issue a license upon clearance, or 
grant a provisional license which becomes a regular 
license when clearance occurs. The statue should also 
specify if another check is requires when a license is to 
be renewed. (California's check is once only). When 
persons being checked are prospective staff or employees, 
the statute should require that these persons submit 
fingerprints to the regulatory agency within a certain 
number of days after they begin work (i.e. 20 days) and 



87 



state explicitly that permanent employment will be 
contingent upon obtaining clearance. [In the case of 
state and employees, clearance can either be required at 
the time of new employment or a clearance could be issued 
and kept on file at the time of the first job and could 
last for a specified period] . 

b . Authority to conduct the criminal records chec k 

The statute should require notification to the applicant 
that a criminal record check will occur, explicitly 
authorize the regulatory agency to submit the 
fingerprints to the state justice agency, and further 
empower that agency to submit prints to the F.B.I. 

c What will be considered necessar y to obtain clearanc e 

Each statute should clearly set forth the grounds upon 
which employment can be denied. It is unwise to leave 
this to guesswork or "guidelines". 

(1) Convictions, not arrests for specified crimes should 
be used. Use of arrest data is not advised, for a 
number of reasons. First, because minorities are 
arrested at a disproportionately higher rate than 
whites, automatic disqualification for employment 
based on arrests without convictions is violative of 
Title VII. ( See George v. Litton Systems. Inc. 472 
F. 2d 631 (1972)). Secondly, arrest data is 
notoriously inaccurate. Misinformation may be 
compounded, never leading to a conviction, but 
resulting in a criminal history record a mile long. 
Just recently, a "Michigan man filed suit charging 
that he was wrongfully arrested five times in less 
than 14 months after an arrest warrant for a man 
using his name was placed in the national computer 
system of the Federal Bureau of Investigation." 4 
Conviction" should include a finding, verdict or 
plea of guilty or a conviction following a plea of 
nolo contendere. The names of crimes will vary, 
state to state, but should include: 

(a) sexual abuse, assault, exploitation, (both 
against a minor and adult) 

(b) incest 

(c) rape 

(d) murder 

(e) kidnapping 



88 



(f) contributing to the delinquency of a minor 

(g) felony offenses involving narcotics 
(h) violent felonies (armed robbery) 

(2) The statute should also state that conviction of 
crimes of the same nature in other states and 
jurisdictions are also grounds for denial of 
employment. 

(3) States should provide a mechanism for discretionary 
review if they consider every kind of criminal 
conviction. A good example of this type of system 
is California. Because California looks at all 
convictions other than minor traffic violations, it 
provides that an exemption from disqualification may 
be granted to one convicted of crimes other than 
child abuse if the director [of the state licensing 
department] has substantial and convincing evidence 
to support a reasonable belief that the applicant 
[and the person convicted of the crime, if other 
than the applicant,] are of such good character as 
to justify exemption. To make this determination 
the regulations consider: 

1. The nature of the offense committed. 

2. Time elapsed since the offense was committed. 
3 Number of offenses 

4. Circumstances surrounding the commission of the 
crime that would demonstrate the unlikelihood 
of repetition. 

5. Activities since conviction, such as 
employment, education or participation in 
therapy, that would indicate rehabilitation. 

6. Character references 

7. Certificate of rehabilitation from a court. 

However the state should choose to consider 
convictions, it should balance the risk to children 
versus the employment rights of persons who have 



89 



criminal conviction records. Simply stated, 
conviction data should only be used if it is 
relevant and recent. 

d. Who makes the decision 

The statute should clearly specify who will make the 
hiring/termination decision. In the author's view, 
it is essential that the determination be made by 
the regulatory agency and not by the child care 
program operator or provider. The reasons are: 

(1) expertise. An agency reviewing numerous criminal 
history records is in a better position to pass 
judgment upon whether termination or hiring is 
warranted. 

(2) liability exposure. The state, not individual 
programs, is in a better position to absorb the cost 
of potential lawsuits. 

(3) decision making by the state obviates the need for 
programs to develop confidentiality procedures for 
the receipt of criminal history information. 

(4) Keeping irrelevant criminal history record 
information out of the hands of employers eliminates 
the potential for bias against those who were 
wrongfully arrested and ex-offenders who have been 
rehabilitated. 

(5) provides for greater uniformity throughout a state 
on what is a minimum standard for employment. 

(6) since the state will have to do the clearance on 
individual operators who have no "director" above 
them anyway, it makes little sense to divide the 
same task between the regulatory agency and child 
care operators. 

(7) since a model statute should include an opportunit y 
to a ppeal an adverse employment decision it makes 
sense that an agency with appeal procedures already 
in place (the regulatory agency) should handle 
appeals. It then makes little sense to divide the 
tasks of making employment decisions and rendering 
decisions on appeals. 

e. Due process- notice and an opportu n ity to be heard 

Once a determination is made, applicants should be 
advised of the decision in writing, whether 



90 



favorable or adverse. (If staff and employees are 
screened, staff employees, and employers should both 
be notified) . If the decision is not favorable, the 
reasons for termination or unwillingness to hire 
should be spelled out. Finally, applicants should 
be informed of how they can appeal the adverse 
decision — to what agency, within what time frame, 
etc. Any hearing should be conducted with the usual 
array of due process safeguard granted in other 
administrative hearings. 

C. Non-legal aspects 

Costs : Costs for doing the national criminal records checks 
(F.B.I.) are estimated to be $12; state screening costs must be 
added to this figure. By statute or regulation, states should 
specify who will pay these costs. For example, in California, no 
fee is charged for fingerprinting or obtaining the criminal record 
of persons who care for six or fewer children. Additionally, as a 
procedural matter, screening should occur at the state level before 
prints are sent to the FBI; if the person is found unacceptable at 
the state level this obviates the need, and resulting expense, of 
doing the national screening. 

D. ftPPPQVAL 

Finally, any statute which intends to utilize the F.B.I, for 
national criminal record checks must be approved. Approval should 
be obtained before your bill goes to the legislature for passage. 
Contact Mr. William H. Garvie, Identification Division, FBI, 
Washington, D.C. 20537, (202) 324-5456. 
IV . Background Checks and Employment History 

In addition to the national criminal record screening law just 
outlined, states wishing to receive their full Title XX 
appropriation must also have in place laws or regulations which 
provide for background checks and employment histories. Again, the 
DHHS has given no guidance as to what is appropriately within the 



91 



scope of a "background check" or "employment history", how these 
activities are to be undertaken, or by whom. Most of the 
considerations outlined previously will be equally relevant in 
drafting a background check or employment history law. Some 
measures states might wish to consider are: 

A. Attestation To "Clean" Criminal His tory 

States can require that those being screened also sign a 
declaration under penalty of perjury that they have not been 
convicted previously of crimes specified by the state. 

B . Checks of Dependency Determinations an d Parental Terminations. 
States can require that persons who as parents or guardians of 
a child have had their parental rights terminated or whose 
children have been adjudicated to be dependents of the state 
shall not be approved as operators, staff or employees. 

C. Checks of Licensing History 

States can also require that checks be made of any previous 
denials, revocations, or refusals to renew which occurred in 
operating facilities for dependent persons (children, elderly, 
etc. ) . 

D. ob jections To Use of the C hild Abuse Registry 

Some states have chosen to use their child abuse registries 
for screening. Without going into an extended discussion, 
this author contends that registries should not be used for 
screening because they were developed for intra-family abuse, 
are frequently ambiguous in defining whether conduct is to be 



* An in-depth examination of this topic is available from the 
Child Care Law Center. Please request "Use of Statewide Central 
Child Abuse Registries for Purposes of Screening Child Care 
Workers. " 



92 



included in the registry, and if so, at what level or 
classification. Additionally, they generally have no 
procedures to correct incorrect findings. The author's 
comments are limited to use of the registry for screening 
purposes, and she passes no judgment on the use of registries 
once a complaint or allegation has been made against a child 
caregiver. However, there are too many troublesome facts about 
child abuse registries for them to be appropriately used by 
persons other than law enforcement or child protection 
personnel. 

E. Employment History 

Employment histories should include verification of 
educational credentials, and verification of previous places 
of employment. 

F. Character/Employment References 

References by previous employers is critical. Reliance on 
friends, relatives and the like should be deemed insufficient. 

G. Probatio nar y Period 

In addition to the measures suggested above, it is wise to 
institute a probationary period to determine a child 
caregiver's suitability. Child caregivers should be informed 
of the existence of the probation and grounds for termination. 

V. Safeguarding Children in Child Car p Settings: What Can Be 
noneJ! Some Recommendations 

A. Licensing 



93 



1. Increase licensing' s role in parent education re: 
licensing requirements, provider communication, 
questions to ask, where complaints can be made, 
indicators of child abuse, community resources for 
learning about abuse and helping victims of abuse etc. 
This should include use of the media, as well as other 
methods and materials. 

2. Improve complaint process: 
-institute toll free numbers 
-speed response time and resolution 

3. Train licensing personnel re: investigation, gathering 
and preserving evidence, identifying child abuse. 

4. Make reasonable parental access to a facility a li- 
censing requirement. 

5. Make availability of parent roster to licensing a 
licensing requirement. Parents should also have access 
to a roster, although parents can also request their 
names be deleted from the list circulated to other 
parents. 

6. Create a separate division or department to deal 
with child care so its unique nature is understood; 
within this division separate licensing and 
enforcement functions; beef-up enforcement division so 
response time is improved — which often means 

more resources for the legal department. 

7. Require child abuse reports to be cross-reported to li- 
censing and vice versa. 

8. Provide intermediate sanctions (fines) for physical 
plant and other non-endangering situations so that pro- 
viders are required to come into compliance or face 
monetary sanctions. 

9. Timely notification of parents and R & R when a license 
is suspended or revoked; development of policies for 
notification when administrative action is not as grave 
as suspension or revocation. 

10. Publicize revocations/denials, non-renewals of licenses 
regularly and locally; publicize injunctions. 

11. Add injunctive relief (to close down the facility) to 
standard revocation orders. 

12. Develop method for placing licensing revocations on 
criminal history records. 

13. Provide for provisional licensing status- with a sta- 
tutory ending period. 

14. Develop formal methods of complaint information sharing 
between : 



on cr\c\ r\ 



94 



(1) child care, residential care, foster 

care, etc. (be certain to check if they have had 
a license before which has been revoked, denied, 
etc.) 

(2) law enforcement, protective services, 
licensing . 

(3) state, county, local officials 

Require all these sources of information to be checked 
out before issuing license. 

Keep records when licensee surrenders license. 

15. Requirements for employees in centers- check at least 
three references thoroughly before hiring; require a 
probationary period after hire for evaluation. 

16. Require protection for workers through non-retaliatory 
provisions for child care workers who report licensing 
violations. 

17. Require licensing to document and study complaints for 
purposes of regulatory reform. 

18. Interagency agreements between licensing, protective 
services, police, and district attorneys should be de- 
veloped so investigatory responsibilities are not du- 
plicated, impeded, or left unperformed. Possible joint 
investigation by CPS and licensing. 

Child Protective Services/L a w Enforcement 

1. Staff of these agencies should be trained not only in 
identifying child abuse, but should understand the 
difference between investigations conducted in the home 
and those in a child care setting. Preferable use of 
child protective worker over police, and if police 
used, may want plain clothes in unmarked car. 

2. Notification to licensing if CPS and law enforcement 
have complaints of child abuse in a child care setting. 

3. Development of procedures for investigation of child 
abuse in child care, i.e. if parents are not targets of 
investigation, interviews with children should be 
conducted at home, or at the very least, parents should 
be notified before a child is interviewed. 

II. Government/Private Resources 

A. More resources devoted to ; 

-provider training in the areas of emergency prepared- 
ness, child development, licensing requirements, child 
abuse identification and reporting; 



95 



-adequate subsidies for low-income parents so they have 
choices; -increase provider wages so that high quality 
staff can be attracted and maintained; 

-development and maintenance of R s R 

3. ftpfiource and Referral 

-establish complaint policies 

-develop choosing child care programs, publications 

-develop means of training parents to engage in on-going 
monitoring of care 

-help in training providers regarding child abuse and develop 
directories of community resources they can turn to, 

-encourage parents to listen to kids- what to expect- normal 
separation anxiety vs. symptoms of trouble 

-promote providers/parents communication on a regular 
basis about concerns 

-promote positive media coverage of child care 

:. Parents 

-learn about licensing requirements 

-learn where complaints are to be made 

-obtain roster and talk to other parents of children in care 
on a regular basis 

-listen to kids 

-advocate for more resources for child care 

-visit programs and see and judge for themselves 

-advise R & R and licensing if programs they have been 
referred to are rejected on the basis of substandard 
conditions 

o. Employees 

-learn licensing regulations and work with program to meet; 
report licensing violations 

-advocate for in-service training opportunities, 
opportunities to learn about child abuse prevention, 
detection and treatment and provider rights and 
responsibilities under the child abuse reporting law. 

-learn curriculum for teaching children about abuse, learn 
about community resources available to interested persons 
and victims. 
E. Children 

-teach about abuse; how they can respond; should be taught 
bv trai .-.ed employees. 



96 



FOOTNOTES 



1. See for example the testimony of June Solnit Sale, Director 
UCLA Child Care Services (June 18, 1984), Dr. Vivian 
Weinstein, Associate Professor of Pediatrics, King/Drew 
Medical Center (June 18, 1984), Anne Cohn, Executive 
Director, National Committee for Prevention of Child Abuse 
(March 12, 1984) and Dr. Vincent Fontana, Medical Director 
and Pediatrician-In-Chief, New York Foundling Hospital Center 
for Parent and Child Development (March 12, 1984) before the 
House Select Committee on Children Youth and Families. (1984) 



2. New York Times, January 18, 1985 

3. Arizona House Bill 2002, introduced January 14, 1985 



4. "Victim Files Suit Over Error that Led To 5 Arrests," New 
York Times, February 12, 1985. 



97 




fi> 







3IG3ROTHERS/3IG SISTERS OFc^MERICA® 



Summary: 

ABA Study of Child Sexual Abuse Allegation Reports 

(1982 - 1991) 



Jane Nusbaum Feller 
The ABA Center on Children and the Law 

Daneen G. Peterson. Ph.D. 
Research Consultant, BB/BS of America 

and 

The BB/BSA Child Sexual Abuse Prevention Staff Work Group 



FEBRUARY 1992 



230 Norm Thirteenth Street * Phtlaoelphia • Pennsylvania • 19107 • (215)567 7000 * FAX 121515670394 



98 



PHBFACB 

This report is a summary of the data from a content analysis of sexual molestation reports filed 
with Big Brothers/Big Sisters of America (BB/B8A). The analysis was carried out, under contract with 
BB/BSA, by the American Bar Association's Center on Children and the Law, and covers allegation 
reports Sled over the period 1082 to 1001. The results were reported in a document entitled: Analysis 
of Molestations Allegation Reports The reports included in the anahrajs are ushu— Mr atetfana and in 
reviewing the findings, the following perspective should be kept in mind. 

In the early 1080s, Big Brothers/Big Sisters of America made the decision to collect specific 
information about alleged incidents of sexual molestation occurring between a volunteer Big Brother or 
Sister and children served. The information was to be collected as BB/BSA learned of such incidents 
from ha affiliated agencies. It was anticipated that by doing so, more could be learned about pedophiles 
that would hopefully put BB/BSA in a better position to provide guidance to its agencies to 'screen out' 
pedophiles from volunteer applicants. 

It was understood that the case-by-case information, once gathered, would be confidential and 
be kept by a national board appointed legal counsel. The task of gathering the data was assigned to 
members of the national organization's field staff. 

These field managers were to obtain the information from telephone interviews with BB/BS 
agency directors after being informed of an alleged sexual molestation incident. While notifying BB/BSA 
of such incidents was not mandatory, the practice was soon generally accepted because executive 
directors were eager to obtain guidance on how to handle case records and terminate matches, as well as 
how to respond to their staffs, boards of directors, other volunteers, and the media. 

Over the years, several different versions of the sexual molestation forms were designed and 
used, in an attempt to obtain more definitive information. These reporting forms were not shared with 
BB/BS agencies and the reports themselves continued to be privileged information between the field 
manager and BB/BSA' s legal adviser, and remain so to this day. 

In 1086, the Crisis Management Guide was distributed to agencies. This guide encouraged 
agencies to report alleged sexual molestations to BB/BSA, with the reporting often including other 
related incidents, as the following summary indicates. 

Because the information was gathered initially by telephone inquiries with executive directors 
who may not have had the specific information needed for complete reporting, it was not always possible 
to obtain all of tRe relevant facts at the time of the initial calls. Furthermore, some of the incidents 
happened many years before coming to light and in many cases, because of the time that had passed 
prior to the Incident being revealed, neither the alleged perpetrator nor the victim was still known to the 
agency. 

Since the report forms had not been distributed to BB/BS agencies, executive directors were not 
informed as to the information BB/BSA needed in the case of an alleged sexual molestation. Therefore, 
such questions as date of initial incidents, frequency and location of molestations, and other such 
descript.ve information, would only be known by the agency if the child and/or parent had been 
interviewed prior to the telephone inquiries. 

It should be noted that during the years covered by this data, BB/BSA was engaged in a range of 
programmatic activities that were designed to deal directly with the issue of child sexual abuse. Some of 
the materials developed during the late 1980s and early 1990s included the adoption of Standards and 
Required Procedures for ONE-TO-ONE service (1986); Program Management Manual (1988); Agency 
Self Assessment and Evaluation (1988); EMPOWER: Child Sexual Abuse Education and Prevention 
Program (1080); and the design of professional staff training institutes, particularly for caseworkers. 

Also, during this period of time, BB/BSA provided a national leadership role to draw the 
attention of other n"*""" 1 youth organizations to the issue of pedophilia. 

The data summarized in the following report, however, represents the first systematic content 
analysis of the different forms that were used to report alleged sexual molestation during the nine year 
period. It provides a closer look at the perpetrators and victims and the assumed related circumstances. 
This first attempt, while inconclusive, indicates that Big Brothers/Big Sisters of America is on the right 
track, and directs the organization to design an even more useful reporting form, which should be shared 
with BB/BS agencies so that the staffs are aware of relevant data needs. 

Dagmar E. McGill 

Deputy National Executive Director 

February, 1002 



99 



SUMMARY: ABA STUDY OF CHILD SEXUAL ABUSE ALLEGATION REPOHT3 

(1982 1991) 

Jane Nusbaum Feller Daneen G. Peterson, Ph.D. 

The ABA Center on Children and the Law Research Consultant, BB/BS of America 

OVERVDZW Awn pprspf/tttw. 

Over the past two decades, it has become increasingly apparent that child sexual abuse exists in 
our society and that the sexual abuse occurs in a variety of settings and is perpetrated by many types of 
people. Both in the media and in academic circles, intrafamilial abuse has been a major focus. Sexual 
abuse in day care (and in other institutions such as schools, residential treatment centers, and foster 
homes) has also received significant attention, particularly from the media. However, in the context of 
volunteer youth serving organizations, child sexual abuse has not been widely studied . Apart from some 
negative publicity for these organizations whenever an allegation of this nature surfaces, little has been 
written on the subject, and even less actual research has been conducted. This analysis of BB/BSA 
molestations allegations reports is a first step in that direction. This summary covers 304 written 
reports of allegations encompassing the years 1982 to 1991. Unfortunately, a major problem effecting 
the interpretation of the data was the lack of documentation or "missing data"! (See Table 1 below). 

TABLE 1 - PERCENT OF MISSING DATA BY CATEGORY 

Categories % 

Affiliate's identifier (last 4 digits) 50.0 

Affiliate's locality type 29.3 

Civil outcome 85.5 

Criminal outcome 31.9 

Criminal records check (Federal) 58.9 

Criminal records check (Local) 52.6 

Criminal records check (State) 54.9 

How perpetrator referred to program 65.8 

Location of incident(s) 54.3 

Month incident(s) occurred/began 70.1 

Number of incidents 26.6 

Number of months into match incident occurred 44.7 

Number of supervisory contacts with perpetrator 73.0 

Number of supervisory contacts with victim 62.2 

Perpetrator's age at time of incident 40.8 

Perpetrator's criminal convictions (other than from records check) 53.3 

Perpetrator's criminal history 'other than from records check) 82.2 

Perpetrator's educational background 67.1 

Perpetrator's employment status 54.3 

Perpetrator's length of residence 67.1 

Perpetrator's marital status 31.9 

Perpetrator's occupation 31.9 

Perpetrator's race 76.6 

Perpetrator's volunteer or employment experience with children 47.7 

Source of allegation to affiliate 25.3 

Time of day of incident(s) 67.4 

Victim's age range iat date jf incident) 33.6 

Victim's age iat date of incident! 53.9 

Victim's age iat date of report' -3.9 

Victim ^ crade at date of incident; s3.6 

Victim j jjraJe iat Jats of report) 70.1 

Victim's primary caretaxer 42.2 

Y-jr incicc :it s. occurred, b- -.^.m 5S-8 

Part f this ir i -Liing iacr • f iij rmation can be attributed to the difficulties in ascertaining 



100 



particulars in any child sexual abuse case. It is well known that cases are notoriously difficult to prove 
in court (civil or criminal) due to the lack of evidence . Two reasons for the lack of evidence are the 
involvement of sexual activity and in particular sex involving children . In addition child molestations 
usually occur outside the purview of any witness other than the child. Moreover, the child often has 
difficulty disclosing the abuse for a number of reasons. He or she may: have been threatened to keep 
quiet; feel guilty or embarrassed about the abuse; be traumatized so as to have repressed the abuse; 
be too young to verbalized his or her experience or any combination of the above. Thus, the events 
BB/BS has attempted to document, by their very nature, defy comprehensive documentation. 

Of the reports with information available about the location of the incident (N = 215), 82.8% took 
place in urban locations with: 41.9% of the reports occurring in large urban areas; 40.0% in medium 
urban areas; 10.7% in rural areas; and 7.4% in suburban areas. In comparison the 1990 Agency 
Information Database (AID), which contains the Agency Data Survey (ADS) demographics gathered 
from the affiliates nationally, indicates that 60.8% (n=209) of the BB/BS agencies (N = 344) are located 
in urban areas. Of those agencies, there is: 21.8% (n= 75) in large urban areas; 39% (n= 134) in 
medium urban areas; 29.9% (n= 103) in rural areas; and, 9.3% (n = 32) in suburban areas. Note that the 
urban agencies as a group serve more children per agency and that rural agencies as a group tend to 
serve fewer children per agency. These facts could explain the discrepancy between the percentiles for 
incident location and agency location. What follows is a geographical distribution of the allegation 
reports: 

TABLE2 - NUMBER AND PERCENTILE OF REPOBTS BY STATE 



State (N = 304) 


51 


% 


California 


16.8 


Florida 


38 


12.5 


Ohio 


15 


4.9 


New Jersey 


14 


4.6 


New York 


14 


4.6 


Texas 


14 


4.6 


Illinois 


11 


3.6 


Massachusetts 


11 


3.6 


Pennsylvania 


10 


3.3 


Virginia 


9 


3.0 


Wisconsin 


9 


3.0 


Arizona 


7 


2.3 


Connecticut 


7 


2.3 


Tennessee 


7 


2.3 


Oklahoma 


6 


2.0 


Kentucky 


5 


1.6 


Utah 


5 


1.6 


Alaska 


4 


1.3 


Georgia 


4 


1.3 


Indiana 


4 


1.3 


Montana 


4 


1.3 


Washington 


4 


1.3 


Alabama 


3 


1.0 



State (Continued) 


n 
3 


% 


Arkansas 


1.0 


Colorado 


3 


1.0 


Maryland 


3 


1.0 


Minnesota 


3 


1.0 


West Virginia 


3 


1.0 


Washington,D.C. 


2 


.7 


Hawaii 


2 


.7 


Idaho 


2 


.7 


Michigan 


2 


.7 


Missouri 


2 


.7 


Nebraska 


2 


.7 


Nevada 


2 


.7 


New Mexico 


2 


.7 


North Carolina 


2 


.7 


Oregon 


2 


.7 


South Carolina 


2 


. 1 


Delaware 




.3 


Iowa 




.3 


Kansas 




.3 


Louisiana 




.3 


Maine 




.3 


South Dakota 




.3 


Missing 




1.3 



The allegations underlying the reports were first conveyed to affiliates from a variety of sources: 
the victim's parent (30.3%\ police (11.5%); a Big Brother or a Big Sister inc'.ading the perpetrator him 
or herself (4.9%), the victim 1 4. 9%); agency staff (4.6%); child protective services persor.r.ei (2. 6%;; a 
relative i^ther than the parent ofthe victim (1.6%); the victim's guardian (.7%); law enforcement ciher 
than police such as the District Attorney's Office ',.7%); and the media (.3%). The 'other' category 
'9.5%) included lawyers, mental health professionals, teachers ofthe victims, as weil as the 
perpetrators' neighbors, relatives, landlords, spouses, and ex-spouses. 



The sources of information for tlus report came from a variety of document.;. ?.-:or to 19S7 
there *as a specific BB.T3SA form used to report the sexual abuse allegations. However, the form was 
inadequate for capturing all the necessary information needed .'or creating profiles .>t'the perpetrators, 
victims, and circumstances and was substantially modified in ">~7. Oth**r c >-umentation gaps occurred 



101 



because some reports were not made on the standardized forms. Those sources included the 
"Inappropriate Conduct" forms, newspaper clippings, a letter, a memo, a note, or some combination of 
those. Together the lack of uniformity and the use of inadequate or incomplete forms contributed most 
dramatically to the miagmp data problem which in turn limited the mterpretabflity of these datum. 

The distribution by number of matches for those agencies found in the reports (N = 253) was: 
8.7% with less than 50 matches; 22.9% with 50-100 matches; 37.9% with 101-200 matches; 25.3% with 
201-500 matches; and 5.1% with 501-1000 matches. In comparison the 1990 AID indicated that the 
match distribution for 417 of the 481 reporting agencies was: 33.1% (n= 178) with less than 50 matches; 
25.9% (n= 108) with 50 to 100 matches; 23.5% (n = 98) with 101 to 200 matches; 14.9% (n = 62) with 201 
to 500 matches, 2.6% (n= 11) with 501 to 1000 matches. 

The reports were processed in three stages: (1) the data was organized into four categories: 
incident classifications - perpetrators - outcomes (criminal and civil) - victims; (2) the data was entered 
into a database using a statistical computer program called SYSTAT for analysis; (3) the findings were 
written up in a report entitled "Analysis of Molestation Allegation Reports". Because of the high 
percentages of missing information, for a given variable, it will be very important to view all of the data 
analysis and discussion within the context of Table 1 above. While reviewing the following data also 
keep in mind that the use of percentiles can be misleading . For example: In a sample of 100 reports, 
30% of wfakh involved multiple victims, 90% of which mciuded a Big Brother or Big Sister, 20% of which 
! males, equals 5 people. 



DJQDEN T RKPOHT ABUSE CLASSIFICATIONS 

The incidents described in these reports may have occurred years before the reports were filed. 
In some cases the child disclosed the abuse only after therapy, sometimes even as an adult. In other 
cases the child disclosed the abuse but the agency was not informed until years later. Still other 
incidents were discovered when the agency heard about a former volunteer's recent misconduct and, 
after interviewing his or her past Littles (or their parents), found out that there had been abuse in the 



Virtually all reports were filed after the match was terminated and relatively few identified the 
date of the incident. Many (38.3%) of the reports did not (or could not) specify even the year of abuse. 
The incidents with available dates (n = 186) occurred between 1964 and 1991. Only .3% (one incident) 
was reported for the 1960s, 6.3% (n= 19) for the 1970s; 51.6% (n= 157) for the 1980s; and 2.6% (n = 8) 
for 1990s. 

The attempt to classify the types of incidents alleged was very difficult. A major part of the 
problem was that the incidents were described in "generic" terms such as: molestation, sexual abuse, 
sexual contact, sexual exploitation, sexual activities, or sexual misconduct in 35.9% (n= 109) of the 
reports. Without specific details of what happened it was impossible to identify the type of alleged 
misconduct. The table below represents the best classifications possible in light of the above 
ambiguities. 

TABLE 3 - TYPES OF SEXUAL ABUSE 

Types (N = 304) 



Molestation (non-specific sexual abuse) 

Inappropriate sexual touching/genital 

Oral sex 

Penetration penile 

'^appropriate sexual touching, other 

O'.her 

Taking sexually explicit photo-video of victim 

Exposing victim ur 1 Laving victim expose self 

Shewing pornography to victim 

Mastui baiion in victims presence 

' .^rctr..t exposure 

'. ' -. mutiny another r j iiavt sexual conui .i with victim 

.'.iissLiig'L'iLKJ'.owii, unspecified, or missing 



% 


n 


35.9 


109 


14.8 


45 


9.5 


29 


8.6 


26 


3.9 


12 


3.5 


11 


2.3 




23 


" 


2.3 


m 


1.0 


3 


- 


2 


.3 


1 


14.8 


45 



102 



It is crucial to remember that these groupings often overlap. For example, exposure may be 
accompanied by the showing of pornography, or sodomy may be combined with other inappropriate 
touching. This overlap was especially common in reports involving more than one incident. For 
categorization purposes, the most severe conduct applicable was used. Because the Inappropriate 
Conduct forms included allegations of physical abuse, employing prostitutes, and making obscene 
telephone calls, they were included in the "other" category. 

In 65.1% of the reports, the location of the incident was not specified. In the reports indicating 
the location of the incidents (N = 106 ), 72.6% (n = 77) occurred in the perpetrator's home and the vast 
majority included showing pornography to the victim. However a substantial portion of the other types 
of sexual abuse also took place in the perpetrators home. The remaining incidents occurred in the 
perpetrator's car (4.7%, n = 5), in the victim's home (5.7%, n = 6), on a camping trip (6.6%, n = 7), in a 
hotel or motel (1.9%, n = 2), in another public place - e.g., a public pool or restroom (4.7%, n = 5), or in 
another private residence or building (.9%, n= 1), and (2.8%, n = 3) in multiple places. 

No real connection emerged between the reports on the location of an incident (65.1%, n= 198 
with missing information) and the time of year the incident occurred (38.8% , n= 118 with missing 
information). It is important to understand that a report may have missing information for location or 
year or both, which would negate the ability to make any connection at all. Therefore the potential 
number of reports useful to the analysis would be something less than 45.7% of the indicated available 
location reports. 

Where possible (27.7%, n= 84) , it was calculated how many months into the match the abuse 
occurred (or began to occur). Most of the incidents happened early in the match. The younger 
perpetrators committed their offenses slightly earlier in the match than their older counterparts. 

Because information about the month of the incident was so scarce (e.g., 70.1%, n = 213 missing), 
the ability to analyze the data was limited. What little data there was revealed a slightly higher number 
of incidents in the summer months, particularly in August. There was also no pattern with respect to 
the time of day because 83.5% of the information was missing or unknown. 

PERPETRATORS 

From the outset, it should be recognized that not all of the 304 reports involving child abuse 
occurred within the context of a match. In fact, 25.3% (n = 77) of the reports the perpetrators were not 
matched to any of the victims. These reports included adult perpetrators (91.1%) who were at some 
time associated with a BB,BS agency. The perpetrators fall into the following categories: Big Brothers 
(81.9%, n=249); Big Sisters (2%, n = 6); Board Members (4.9%, n= 15); agency staff (2.3%, n=7); Little 
Brothers (1.3%, n = 4); other (4.6%. n= 14); missing (2.9%, n = 9). Some (4.6%) of the perpetrators were 
never directly involved with BB/BS at all (e.g., the friend of a Big Brother or the husband of a Big 
Sister). 

For those who had been matched at some time the following table lists the number of matches 
each perpetrator had during their tenure as a volunteer. 

TABLE 4 - TOTAL NUMBER OF MATCHES PER PERPETRATOR (N= 304) 

Matches 

1 
o 

3 
4 
5 
6 

19 

Missui^ or X A 

Most of the reports 94 7 C ~. u = 28S> involved male perpetrators. Two percent involved female 



% 


n 


33.6 


102 


19.1 


58 


13.5 


41 


4.3 


13 


2.6 


8 


1.0 


3 


.3 


1 


.3 


1 


25.3 


77 



103 



perpetrators. In one case (.3%), both the husband and the wife of a couples match were perpetrators. 

Marital status of perpetrators was available in 68.1% (n = 207) of the reports. Of those: 57% 
(n=118) were single; 22.2% (n = 46) were married; and 14% (n = 29) were divorced. The balance of the 
marital status categories was divided into: separated (n = 4); living together (n = 2); widowed (n = 2); and 
unknown (n = 2). Since 81.9% (n = 257) of all the perpetrators (N = 304) were Big Brothers, it was not 
surprising to find that the above percentages for marital status roughly correspond to the 1990 AID 
distribution for male volunteers (e.g., Big Brothers) which was: 51.2% for single volunteers; 38.3% for 
married volunteers; and, 6.1% for divorced volunteers. 

Information for education was available for only 32.9% (n = 96) of the reports. Of those reports: 
65.6% had at least some college experience which was categorized as: 28% (n = 27) some college; 3.1% 
(n = 3) associate's degree; 22.9% (n = 22) bachelor's degree; 7.2% (n = 7) master's degree; and 4.2% 
(n = 4) professional degree (e.g., Ph.D., medical doctor, lawyer). For male volunteers the 1990 AID 
reports that a similar disproportionate number of volunteers (79%) fell in the college educated group. 

At the time of the alleged incident the perpetrators identified in the reports ranged in age from 
13 (a Little Brother) to age 62. The distribution for age at both the time of incident and the time of 
reports were as follows: 



TABLE 5 - AGEOFPEEPETBATOEATTIMEOFIN 


CEDENT OE AT TIME OF REPO 




At time of incident (N = 304) 


At tinw» of report (N = 304) 


Arc 


% u_ 


% _n_ 


13-19 


2.6 8 


1.8 6 


20-29 


26.0 79 


29.4 90 


30-39 


18.1 55 


27.7 85 


40-49 


8.2 25 


14.8 45 


50-59 


3.3 10 


6.0 18 


60-69 


.6 2 


1.2 4 


70 + 





.7 2 


Missing 


40.8 124 


17.4 53 



Because the question of race did not appear on the latest allegations report form the 
perpetrator's race was either not indicated or not known in 77% (n=234) of the reports. Of the 
perpetrators reported (N = 70): 59 (84.3%) were White; 5 (7.1%) were Black; 3 (4.2%) were Hispanic; 2 
(2.8%) were Asian; and 1 ( 1.1%) was "other* (Indian). A similar distribution for male volunteers can be 
found in the AID where: 35.8% are White; 9.2% are Black; 2.3% are Hispanic; .9% are Asian; and 1.8% 
are other. 

The occupational background and BB/BS association of the perpetrators were as follows: 

TABLE 6 - PEBPETEATOB'S OCCUPATION AND ASSOCIATION WITH BB/BS 

% male vols 



Occupations (N = 203) 


% 


n 


(N = 25,862) 


BB/BS Association (N = 304) 


_%_ 


n 


Clerical 


6.S 


14 


2.2 


Big Brother 


81.9 


249 


Craft 


ll.S 


24 


4.3 


Big Sister 


2.0 


6 


Labor 


8.3 


17 


5.3 


Board Member 


4.9 


15 


Mgn.: Admin 


ll.S 


24 


142 


Agency Staff 


2.3 


7 


Operatives 


6.3 


14 


2.6 


Little Brother 


1.3 


4 


Prof.Tech 


29.0 


59 


35.9 


Other 


4.6 


14 


Sales 


6.3 


14 


9.8 


Missing or N.A 


2.9 


9 


Service 


8.3 


19 


5.9 








Student 


5.4 


11 


9.5 








Other 


2.9 


6 


2.5 








Unknown 


.9 


o 


7.9 









104 



Over half of all the reports (52.61, n = 160) did not contain information on a criminal records 
check and in addition some of the reports (14.8%, n = 45) indicated that a criminal records check was 
never done. It should be noted that currently two states. New York and New Jersey, in which 9% of the 
incidents occurred (See Table 2), do not have formal mechanisms for obtaining criminal records checks. 
In addition, in the past, there have been other states with similar barriers to criminal records checks, the 
most notable being California. Only 2.3% of the reports revealed an arrest or conviction from records 
checks. Perpetrators with a criminal history discovered by a records check were involved in only one 
exposure report, one inappropriate touching report, and one sodomy report. However, 17.1% of the 
reports revealed some sort of criminal history information about the perpetrator which was not obtained 
by a records check. 

Patterns were difficult to discern with respect to the typical perpetrator's experience of working 
or volunteering with children, mostly because of a lack of data (49.7%). The spectrum of the youth 
related experiences included: other BB/BS programs (n = 22); formal youth serving organizations and 
church youth groups (n = 58); recreation activities (n = 27); schools (n = 27); and child care • e.g., 
babysitters, camp counselors (n=12). Twenty of the reports described "other" volunteer experience 
(e.g., foster care, less formal activities) and 20 described "other" employment experience (e.g., juvenile 
counselors, employees at residential centers for youths). It should be understood that one perpetrator 
could fall in several or all of the categories, so the figures given above should be viewed with that aspect 
in mind. 

Of the 86 perpetrators (28.4% of the total number of reports) for which length of residency 
information was available, it was found that perpetrators tended to reside for a substantial length of 
time in the community where the alleged incident (s) took place. In fact, 47.7% (n = 41) of the 
perpetrators lived in the area for over 10 years; 18.6% (n= 16) for 5 to 10 years; 10.4% (n = 9) for 3 to 5 
years; 16.3% (n = 14) for 1 to 3 years; and the balance of 7% (n = 6) for less than 1 year. 

In 73% of the reports, no information was given on the number of supervisory contacts during 
the match. For those reports that did contain that information (15.5%), the number of contacts ranged 
from 2 to 80. Three major issues that can have a direct effect on those number of contacts are: (1) 
length of the match; (2) varying definitions of "supervisory contacts"; (3) varying record-keeping 
systems and capabilities. Because these issues have a direct impact upon the interpretability of the data 
there is little to discuss. 

-^ OUTCOMES INVOLVING CRIMINAL AND CIVIL PROSECUTION 

For (34.5%, n=105) of the reports, the criminal treatment of the allegations was missing or 
unknown. For the others (65.5%, n= 105), the legal system resolutions were as follows: 44 (14.5%) no 
action; 80 (26.3%) charged or arrested (no disposition); 31 (10.2%) charged or arrested and conviction; 
30 (9.9%) charged or arrested and guilty plea; 5 (1.6%) charged or arrested and dismissal (not guilty); 5 
(1.6%) suicides; 4 (1.3%) applicants were rejected or terminated based on criminal history. Unsuccessful 
criminal prosecutions were rare among the reports. Only 1.6% of the reports indicated that criminal 
charges against the perpetrator were dropped or dismissed, or that he or she was found "not guilty". 

Even fewer reports (14.5%, n = 35) addressed the question of civil litigation involving the 
allegations. In 85.5% of the cases, this information was missing. Civil resolutions were as follows: no 
lawsuit filed (6.3%, n= 19); suit filed against affiliate and resolution unknown (3.3%, n=10); suit filed 
against both affiliate and BB/BSA and was settled (n = 2, .7%); suit filed against both and resolution 
unknown in = 2, .7%); suit filed against affiliate and settled (.3%, n= 1); suit filed against BB/BS and 
resolution unknown (.3%, n= 1); "unknown" which included threats but no suit yet filed (3.0%, n = 9). 

VICTIMS 

At least one victim was a Little Brother in 71.7% (n = 2181 of the reports and a Little Sister in 
4.6% (n = 14) of the reports. Some of the victims were indirectly associated with the program as siblings 
(5.9%, n-lS) or other family members or friends (4.3%, n= 13) of a child in the program. Victims who 
were generally unrelated to any BBBS program were involved in 32.2% (n = 98) of the reports ie.g., 
perpetrator's own children, others involved in some youth activity, neighbors, or complete strangers.) 

Of the 304 reports. 31.9% (n = 97! indicated that multiple victims were involved. The total 



105 



number of victims (N = 458) included both children participating in a BB/BS program and those with no 
connection to the program. However, there were 17 reports where more than one victim was indicated 
but the total number was not specified For those reports, the victim count was recorded as a quantity 
of "one". As a result, the number of victims (n = 458) is under-represented. Of the 304 reports involving 
all victims, 70.7% (n = 215) of the reports indicated that at least one of the victims was matched with the 
perpetrator. 

More than half (54.1%) of the reports gave no indication of the victim's age at the time of the 
incident. For some of the reports where the age of the victim was reported, it was not clear when or 
what age was recorded. For example the age recorded could have been: (1) at the time of the incident; 
(2) at the time of the report; or (3) at some point during the range spanning the length of the abuse 
period. 

Preteen and early teenage children comprised a disproportionate number of victims in the 
report. This was not surprising because as demonstrated below the percentage of male clients being 
served by BB/BS are roughly proportionate to the victim group. What follows is a table of the ages of 
the victims at both the time the incident occurred and at the time that the report was made. For 
comparison, since most of the victims were Little Brothers (71.7%, n = 218), the following table includes 
the distribution by percents of the male clients being served by BB/BS according to the data from the 
1990 Agency Data Survey (ADS). 

TABLE7 - AGE OF VICTIM AT TIME OF INCIDENT OB TIME OF BEPOBT 

AtThneOfInadent(N=130) % OF MALE CLIENTS At Time Of Report (N=214) 

Age % n (N= 25339) %_ 

1 

2 1.5 2 

4 1.5 2 

5 -2 

6 .8 1 .9 

7 5.8 7 3.0 

8 6.2 8 5.9 

9 10.0 13 9.1 

10 18.5 24 11.6 

11 10.0 13 13.3 

12 16.9 22 12.7 

13 13.8 18 13.0 

14 4.6 6 10.4 

15 7.7 10 7.9 

16 5.6 

17 1.5 2 3.6 

18 2.1 

19 .8 1 1 
20 
21 
22 
23 
24 
26 
28 .8 1 

Many (43.8^) of the reports involved multiple incidents (i.e. the number of times any one child 
was victimized) for ai ieast one of the victims listed. There was no clear relationship between the 
number of incidents and the victim's age. 

Most cf the reports i85.6<*) were missing data on the principle victim's grade level at the time of 
the incident! s .. Those reports in which grade-level information was available are fairly evenly 
distributed among the grades with a sli ghtly higher percentage identifying third graders as victim. 





n 


.5 


1 


.9 


2 


.9 


2 


.5 


1 


.9 


2 


3.3 


7 


3.3 


7 


6.1 


13 


10.3 


22 


10.3 


22 


12.1 


26 


11.7 


25 


8.9 


19 


10.7 


23 


3.3 


7 


5.6 


12 


2.8 


6 


2.8 


6 


1.4 


3 


.5 


1 


.9 


2 


.9 


2 


.5 


1 


.5 


1 


.5 


1 



106 



Of the 304 reports, 42.4% failed to comment on the victim's primary caretaker, and in .7% of the 
reports the primary caretaker was unknown. Of the reports that mentioned primary caretaker 
(N = 170), the principle victim's primary caretaker was a single parent 90% of the time, of which 89.4% 
(n= 152) were females and .6% (n= 1) was a male. This preponderance of single parent households is 
similar to the distribution for male clients found in the AID (88.1%). It is not recorded in the AID 
whether the single parent is male or female but typically it is the mother. 

CONCLUSIONS 

If files are to be maintained on the known sexual abuse allegations it is important to reflect on 
the issues covered in this report. While the right general questions were asked , sometimes they were 
not as specific as they should have been. In many instances, this lack of specificity arose because either 
the questions on the forms or their responses were vague. One notable omission was that the forms 
didn't ask whether the abuse occurred more than once, and if so, how often and over what period of 
time. 

It is suggested that the current forms, used for reporting, be redesigned into a single document 
which would be used uniformly across the country. The success of such an effort depends not only on 
the creation of a new form that asks all the "right" questions, but in the diligent completion of that form 
and a nationwide campaign to use the form consistently for all appropriate allegations. 

In summary, much of the missing data could be obtained with the use of explicit and uniform 
forms; diligent record-keeping and follow up; as well as implementing rigorous reporting policies and 
procedures. 



107 



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/BV 



AMERICAN BAR ASSOCIATION 



Center on Children 
and the Law 

1600 M Stffr. NW 
Wltrimmon DC 200)6 
.202. 1)1.2230 
ABA Ftt .2021 ))1 2220 




.. -j- .\ 

CMMt *dTT>.n..i..li,. Slj.p 



August 13, 1993 

The Honorable Don Edwards 
Chairman, Subcommittee on 

Civil and Constitutional Rights 
House Committee on the Judiciary 
Rayburn House Office Building, Rm. 806 
Washington, D.C. 20515-6220 

Dear Congressman Edwards: 

On July 16, 1993, the Subcommittee on Civil and Constitutional Rights held 
a hearing on H.R. 1237, the "National Child Protection Act." We are 
providing information requested for inclusion in the written record of this 
hearing. At the outset, we want to applaud the Subcommittee's efforts 
toward developing a stronger national system for identifying persons with 
criminal backgrounds who work with or seek to work with children. The 
proposed Act, which is the subject of these hearings, presents a framework 
worthy of consideration. 

The American Bar Association Center on Children and the Law is currently 
conducting a study which we believe would greatly assist in the planning and 
implementation of a national background screening system for child care 
and youth service workers. The development of effective legislation, always 
a difficult task, is compounded in the present situation by the dearth of 
empirically-based literature assessing criminal record screening of child care 
and youth service workers. Our current two-year study, funded by the 
Department of Justice through its Office of Juvenile Justice and 
Delinquency Prevention, will assist in filling this void. The study will provide 
a comprehensive overview and evaluation of screening practices, including 
criminal record checks, that are used to identify potentially abusive 
employees and volunteers and will make recommendations regarding a 
national approach to screening. The final report and recommendations will 
be completed by June 1994, although some of the results may be available 
earlier. (Enclosed is a project summary as well as a legal and social 
literature review discussing screening methods, including criminal record 
checks.) 

Our preliminary findings indicate that there are significant factors that will 
impact on the establishment of a national background check system. In 
particular, the Committee may wish to consider the extensive time it takes 
to receive requested information, typically as long as 6 to 8 weeks, often 



108 



causing organizations to hire individuals before a background check is completed. Further, 
it appears that the criminal record information requested may be incomplete; disposition 
data is often lacking or cannot always be linked to an original arrest record. Moreover, 
there are significant costs associated with automating and updating criminal history 
information systems, as well as in requesting a federal, state, or local background check (for 
example, the FBI charges $23.00 per fingerprint check, while state fees may run as high as 
$27.00). Ascertaining the extent of these costs and which individual, organization or 
government agency will pay for them is, therefore, implicated in any decision to establish 
a national background check system. 

In addition, the Department of Defense and other federal agencies, pursuant to Subtitle E 
of the Crime Control Act of 1990, have attempted to implement provisions similar to those 
currently proposed in the National Child Protection Act. Their experience, which will be 
reviewed and evaluated in the OJJDP-funded study, would prove invaluable in determining 
whether to enact the proposed Act or whether changes are advisable. Specifically, the study 
will: (1) indicate the length of time required to implement the criminal background check 
systems required of various federal agencies under Subtitle E; (2) detail the costs and 
analyze the effectiveness of those systems; and (3) delineate any problem areas that may 
have slowed the implementation or made it more costly. 

Given the limited funds available in this time of fiscal constraint, and to ensure that 
Congress and the states are prepared to adequately fund any legislation enacted, we offer 
the Subcommittee this information as it considers the proposed Act. In the event that 
related legislation requiring criminal background checks is considered in the future, the 
Subcommittee may wish to review the study's findings regarding the effectiveness and costs 
of various background screening methods. 

We thank you for this opportunity to provide you with information regarding the study and 
hope that our comments have proved useful. If we can be of further assistance, please 
contact Noy Davis, Esq., Project Manager, at (202) 331-2244. 



'.(.,( 



— -Susan Wells, Ph.D. 
Project Director 







/: 



Noy S. Davis, Esq. 
Project Manager 

Kimberly Dennis, M.P.A. 
Research Associate 



109 



EFFECTIVE SCREENTNG OF CHILD CARE AND YOUTH-SERVING WORKERS 

Project Summary 

.Statement of the Problem 

There are many volunteers and paid personnel, working in child/youth-serving 
organizations, who have direct contact with children and youth. Most are dedicated and 
caring individuals. Too often, though, employees or volunteers of such organizations have 
used their position to victimize young persons. 

Various state and federal laws and regulations on procedures for screening employees 
and volunteers of child/youth-serving organizations have been adopted over the last several 
years. However, no comprehensive information is available as to what screening practices 
are now mandated and utilized, and how effective particular screening practices have been in 
identifying potential employees and volunteers who might harm the children and youth they 
would be serving. 

Goals of the Project 

(1) To provide a comprehensive overview of screening practices, including criminal 
record checks, that are used in public and private sector child/youth-serving 
organizations to identify potentially abusive employees and volunteers; and 

(2) To evaluate the effectiveness of current screening practices in protecting children and 
make recommendations regarding a national approach to screening. 

Project Specifics 

This two-year project has been undertaken by the Center on Children and the Law of 
the American Bar Association pursuant to a grant from the federal Office of Juvenile Justice 
and Delinquency Prevention. The Center on Children and the Law is a project of the ABA 
Young Lawyers Division. 

The project staff includes: 

Susan J. Wells, Ph.D., Project Director; 
Noy S. Davis, J.D., Project Manager/ Attorney; 
Kimberly Dennis. M.P.A., Project Research Associate; 
Cheryl Hinton, Project Secretary. 

In order to utilize certain organizations' considerable expertise regarding issues and 
methods involved in this project, the project has established subcontracts with: 

Westat, Inc.; 

National Collaboration for Youth; 

American Public Welfare Association; 

National School Boards Association; and 

Center for Child Protection and Family Support. 



110 



Project Methodology 

Specific project tasks include but are not limited to: 

(1) Developing a directory of child/youth-serving organizations and agencies, complete 
with a listing of professions, jobs and volunteer positions, the estimated number of 
individuals in those given professions and positions, and the estimated number of 
children served. The directory will serve to identify the potential universe of those 
who work with or around children and analyze the degree of risk and accessibility to 
children in different settings. 

(2) Reviewing state statutes, regulations, legislation and policies regarding the licensing 
and oversight of child/youth-serving organizations and their professionals and 
volunteers. This review and analysis will determine the numerous state requirements 
and to what degree these mandates vary both between and within the states for a 
given setting. 

(3) Conducting a nationwide survey of child/youth-serving organizations regarding types. 
costs, and effectiveness of their screening methods. Among other things, this survey 
will help capture how often and in what types of organizations screening takes place 
and in what types of organizations abuse is most likely to occur. 

(4) Conducting an in-depth supplemental study on the effectiveness of screening practices 
in conjunction with the Department of Defense. This piece will provide concrete 
information on the implementation, results and evaluation of background screening 
methods, (in particular, criminal record checks). The Department of Defense makes 
an excellent host for such a study due to the law (P.L. 101-647) mandating screening 
of all employees in federally-operated or federally-contracted child caring facilities 
and the variety of settings (e.g., child development centers, schools, medical 
facilities, and voluntary, recreational groups) in which DoD serves children. 

Additional project tasks include: 

(1) Reviewing relevant legal and social science literature; 

(2) Conducting a survey of the insurance industry regarding insurers' requirements and 
recommendations for screening procedures by child/youth-serving organizations: and 

(3) Preparing a final report, which will include recommendations regarding a national 
approach to screening of child/youth-serving organization employees and volunteers. 



For further information contact: Noy S. Davis (202) 331-2244 or Kimberly Dennis (202) 
331-2669, ABA Center on Children and the Law, 1800 M Street, N.W., Suite 200S, 
Washington. D.C. 20036. A copy of The Effective Screening of Child Care and Youth 
Service Workers: A Review of the Literature is available from the Center for $12.00. The 
Final Report and Recommendations of the Project will be available in June 1994. 



Ill 



EFFECTIVE SCREENING OF Kimberly Dennis, MP. A 

CHILD CARE AND YOUTH- Noy S. Davis, Esq. 

SERVICE WORKERS: A ABA Center on children and the Law 

Review of the Literature A p ro ject of the Young 

Lawyers Division, 
May 1993 American Bar Association 

Prepared under Grant No. 92-MC-CX-0013 from the Office of 
Juvenile Justice and Delinquency Prevention, Office of Justice 
Programs, U.S. Department of Justice. 

Points of view or opinions in this document are those of the 
authors and do not necessarily represent the official position or 
policies of the U.S. Department of Justice. 

The views or opinions expressed herein have not been approved 
by the House of Delegates or Board of Governors of the 
American Bar Association and, accordingly, should not be 
construed as representing the policies of the American Bar 
Association. 

This report was developed as part of the research project on 
Effective Screening of Child Care and Youth-Service Workers 
by the grantee, the American Bar Association Center on 
Children and the Law. 

The project staff includes: 

Susan J. Wells, Ph.D., Project Director; 
Noy S. Davis, J.D., Project Manager/ Attorney; 
Kimberly Dennis, M.P.A., Project Research Associate; 
Cheryl Hinton, Project Secretary. 

For more information about this report contact: 

Kimberly Dennis 

ABA Center on Children and the Law 

1800 M Street, NW 

Suite 200 South 

Washington, DC 20036 



° 1993, American Bar Association 



112 

TABLE OF CONTENTS 

INTRODUCTION 1 

I. PROBLEM STATEMENT 3 

A. Growing Number of Children in Out-of-Home Care 4 

B. Speculation on the Number of Adults Who Come 

Into Contact with Children 5 

C. Incidence of Extrafamilial Abuse 6 

D. Identifying "Child Abuse": The Need for a Uniform Definition 6 

E. Failure to Take Strong Action Against Abuse in 

Out-of-Home Settings 7 

II. PREVENTING EXTRAFAMILIAL ABUSE - 

NO EASY ANSWERS 9 

A. Difficulty in Profiling Child Abusers 9 

B. The Recidivistic Nature of Child Abuse 1 1 

C. Limitations of Attempting to Profile Offenders 13 

III. NATIONAL INITIATIVES 15 

A. Early Efforts 15 

B. More Recent Federal Initiatives 17 

IV. STATE SCREENING LAWS: 

A MYRIAD OF APPROACHES 18 

A. Licensing 19 

B. Access to Criminal History Information 20 

V. USE OF CRIMINAL RECORD CHECKS FOR 
PRE-EMPLOYMENT AND LICENSING PURPOSES 22 

A. Background on Criminal History Information Systems 23 

B. Child Offender Arrests and Convictions are Lacking 24 

C. Likelihood of Discovering an Individual with a Criminal Record 25 

D. The Growing Use of Criminal Records for Employment 

and Licensing Purposes 27 

E. Criminal History Information and Data Quality Issues: 

Cause for Concern 29 

F. Disadvantages and Criticisms of Criminal Record Checks 34 

G. Legal Issues Arising From the Use of Criminal Record Checks 42 
H. Unanswered Questions, Unresolved Issues 47 



113 



VI. OTHER SCREENING MECHANISMS 50 

A. Screening Against State Central Child Abuse Registries 50 

B. Screening Against State Sex Offender Registries 55 

C. National Practitioner Data Bank 58 

D. Teacher Identification Clearinghouse 59 

E. Application Forms and Personal Interviews 60 

F. Reference Checks 63 

G. Psychological Tests 65 
H. Additional Pre-Employment Screening Options 68 
I. Post-hiring/Placement Procedures to be Used 

in Conjunction with Background Screening 69 

J. Summary Statement Regarding Screening Methods 70 

VII. CONCLUSIONS AND RECOMMENDATIONS 70 

A. Summary - What We Know to Date 70 

B. Preliminary Recommendations for Effective Screening 72 

C. Looking Ahead to More Effective Screening and 

Other Prevention Efforts 75 



ENDNOTES 77 

REFERENCES AND SELECTED BIBLIOGRAPHY 81 



114 



INTRODUCTION 

Although it is relatively easy to check on a potential employee or 
volunteer's basic professional capability, securing reliable information about an 
applicant's moral adequacy is not always so simple. The ever-increasing need 
for credible background information is stymied by a limited ability to obtain it. 
Organizations that engage child care and youth-service workers are struggling 
with this very dilemma — a dilemma that has intensified under the media's 
spotlight on sensational child abuse cases and parents' growing anxiety about 
their children's safety in out-of-home care. 

In response, legislators, child advocates, child- and youth-serving 
organizations and other concerned individuals are eagerly seeking out methods 
guaranteed to prevent child abuse in out-of-home settings. The search thus far 
has unearthed some complex and unresolved issues about extrafamilial child 
abuse, while fueling the debate over what is the most effective way to identify 
employees and volunteers who may potentially harm the children they serve. 
Much of the focus has centered on the growing use of criminal history record 
checks. The current situation has thus prompted several questions, including: 

► To what extent is child abuse perpetrated by child care and youth- 
service workers in out-of-home settings? 

► What are the different screening mechanisms available to help identify 
potentially abusive employees and volunteers during the selection 
and/or hiring process? 

►• How effective are each of these screening mechanisms in preventing 
extrafamilial abuse? 



► 



Should child- and youth-serving organizations be mandated by law to 
conduct criminal record checks on all employees and volunteers who 
may come into contact with children and youth, even if such contact is 
on an infrequent basis? 

► Is the quality of information gained from screening methods worth the 
substantial human resource and financial expenditures, or are there 
more cost-effective measures we can take to prevent child abuse? 

What follows is a discussion of this quandary, based on a review of 
literature (1980 to 1992) pertaining to the screening of employees and/or 
volunteers who may be unsuitable to work with or around children. The 
emphasis of this report is on the use of criminal record checks to ferret out 
unacceptable applicants. Readers should note that our research uncovered few 
empirically based studies, reports or articles which document the effectiveness 
of screening practices ~ particularly criminal record checks — both in terms of 
identifying potential child abuse offenders and making the best use of scarce 



115 



funds. Taken together, the literature exposed a mix of opinions and 
experiences regarding screening of child care and youth-service workers. 
Unfortunately, most of these views were not sufficiently backed by the solid, 
factual data needed to formulate sound decisions and prudent 
recommendations. 

This review thus begins with a general assessment of the problem and 
nature of extrafamilial child abuse (Sections I and II) and then hones in on 
matters specific to screening techniques, in particular criminal record checks. 
Topics addressed in Sections III through V include national legislative 
initiatives regarding background screening; the myriad of state laws, 
regulations and statutes pertaining to screening; and implications of the 
growing use of criminal history record checks for pre-employment and 
licensing purposes. The latter topic area includes a discussion of criminal 
history information and data quality concerns, disadvantages of criminal record 
checks and legal issues pertaining to the use of criminal record checks. A 
cursory look at other screening options (e.g., state child abuse registry checks, 
interviews, psychological tests) is then provided in Section VI, followed by a 
final section summarizing some tentative resolutions regarding effective 
screening procedures. 

Readers should keep in mind that these initial conclusions are general 
in nature due to the lack of comprehensive information currently available. 
This literature review serves as a first-step in the present ABA Center on 
Children and the Law study of effective screening practices used by child- and 
youth-serving organizations. The review is intended to bring attention to many 
unresolved issues and set the framework for the study's final objective: 
developing recommendations for a national approach to the screening of child 
care and youth-service workers. This project, to be completed in June 1994, 
is made possible with the support of the Office of Juvenile Justice and 
Delinquency Prevention. 



116 



I. PROBLEM STATEMENT 

About 10 million young children spend a significant part of each 
weekday being cared for by someone other than their parents (Children's 
Defense Fund, 1992). Our nation's changing demographics and the growing 
number of single-parent and two-parent working households has resulted in an 
increased reliance on out-of-home care and supervision ~ a trend not likely to 
change anytime soon. And whether or not a child's mother works, increasing 
numbers of 3- and 4-year-olds are spending some portion of their day or week 
in a group program (Hayes et al., 1990). In addition to child care, there are 
many other service providers who help meet the diverse needs of children 
(e.g., education, medical care, mental health counseling, legal assistance, 
recreation). While the majority of employees and volunteers who work in the 
various child and youth settings are dedicated and caring individuals, too 
often, an individual has used his or her position of trust to victimize young 
people. 

At home or in the confines of school, day care or some comparable 
setting, child abuse is widespread. Reported incidents of all child abuse shot 
up 31 percent between 1985 and 1990 (Senate Judiciary Committee, November 
1991). And while close to 2.7 million cases of child abuse were reported in 
1991, an additional 6 million cases go unreported each year (Children's 
Defense Fund, 1992; U.S. General Accounting Office, 1992). Although it is 
recognized that the majority of these incidents happen in the home, pinpointing 
the extent of child physical and sexual abuse which occurs in out-of-home 
settings is difficult and widely disputed. Most available figures depict child 
sexual abuse only, primarily in the day care setting. Finkelhor and Williams 
(1988) estimate that about 5.5 children per 10,000 enrolled in day care are at 
risk of sexual abuse, a statistic frequently cited. Other studies estimate that 
reported rates of abuse in day care centers, foster care homes and schools 
range from 1 to 7 percent (Baas, 1990; Daro, 1992; Margolin, 1991b; 
Rutledge, 1992). 

Despite the picture that most studies paint, extrafamilial abuse is not 
limited to day care centers and schools: Over the past 10 years, as many as 
800 cases of child sexual abuse by priests have either been filed as lawsuits or 
settled quietly out of court by Roman Catholic dioceses. And according to one 
author who studied priests' sexuality and celibacy, "for each case that's public 
and legal, there's one that's silent and settled" (The Washington Post, 
December 4, 1992). The Washington Times reported that the Boy Scouts of 
America becomes aware of about 100 cases of child sexual abuse a year and 
maintains more than 2,000 cases on file at any one time (May 20-24, 1991, 
special series). Similar statistics do not exist regarding physical abuse. 



117 



A. Growing Number of Children in Out-of-Home Care 

Adequately documenting and responding to extrafamilial abuse becomes 
more problematic as one begins to tally the multitude of settings in which 
offenders seek access to our nation's 68.5 million children: educational 
institutions, day care facilities, foster care homes, youth development 
organizations, social service agencies, medical care facilities, juvenile 
detention, correctional and other law enforcement facilities, recreational 
centers, and religious-based programs. Once we consider the swelling client 
bases for each respective service provider - due in part to the dissipation of 
the "traditional" family, the proliferation of economic pressures and social ills, 
and the desire to supplement a child's development with outside activities - 
the potential magnitude of the problem becomes startling. Consider, for 
example, the volume of children served by just a smattering of various child- 
and youth-serving workers: 



• 



• 



• 



An estimated 429,000 children resided in foster family homes, group homes 
or institutional settings in 1991, an increase of 59 percent from the early 
1980s; it's estimated that close to 900,000 children will live in out-of-home 
care by 1995 (Children's Defense Fund, 1992). 

Public school enrollment rose from 27 million in fall 1985 to 30.4 million in 
fall 1991, an increase of close to 13 percent; enrollment is expected to reach 
close to 32 million by 1995 (National Center for Education Statistics, 1992). 

Approximately 750,000 children and youth received care from mental health 
organizations in 1988 (National Institute of Mental Health, July 1991). 

The 15 organizations alone that comprise the National Collaboration for Youth 
serve approximately 30 million young people each year (Carnegie Council on 
Adolescent Development, 1992). 

An estimated 35 million children and youth aged 6 to 18 participate in youth 
sports programs each year (Martens, 1986). 



Arriving at a clear-cut number of how many children and youth are 
served in all possible settings is elusive. The bottom line is, "We really don't 
know beans about these children. We don't have accurate counts ..." or the 
solid data needed to make appropriate policy decisions and to justify spending 
scarce resources (Select Committee on Children, Youth, and Families, 
September 1986). Efforts are hampered by the large number of unlicensed, 
unregulated day care centers and family day care homes, and the fact that 
many voluntary and nonprofit organizations do not keep figures on how many 
children they serve. 



118 



B. Speculation on the Number of Adults Who Come Into 
Contact With Children 1 

Given our limited ability to ascertain how many children make their 
way in and out of child- and youth-serving organizations, we might instead 
focus on how many adults serve children and youth in some capacity. 
Unfortunately, definitive estimates on the number of employees and volunteers 
in professions that come into contact with children is even more cryptic, in 
particular among voluntary and religious-based organizations. While there are 
more than 17,000 community-based, youth development organizations and 
some 400 private, nonprofit national youth organizations, organizational 
staffing levels vary, as does the use of volunteers (Carnegie Council on 
Adolescent Development, 1992). The high staff turnover rate, estimated to be 
40 to 50 percent annually among some child care workers, compounds the 
problem (Hayes et al., 1990; Wilier et al., 1991). 

To provide some idea of the total universe of child care and youth- 
service workers, Table 1 highlights two of the more prevalent groups of adults 
who work with children: child care workers (in center and family day care 2 ) 
and school staff. 



TABLE 1: 



ADULTS WHO COME INTO CONTACT WITH 
CHILDREN - IN CHILD CARE & THE SCHOOLS 


NUMBER 

(approximate) 


CHILD CARE 3 : 




Center-based early education program staff 


840,000 


Regulated family day care providers 


165,200 


Unregulated family day care providers 


694,400 - 2,660,000 


Total Child Care Workers 


1,699,600-3,665,200 


ELEMENTARY & SECONDARY SCHOOLS 4 : 




Public & private schools - admin, and instruct'l staff 


3,600,000 


Public & private schools - noninstruct'l/support staff 


1,425,000 


Public and private schools - volunteers 


1,361,400 


Independent schools - all staff 


109,500- 111,000 


Total Elementary and Secondary School Staff 


6,495,900 - 6,497,400 


TOTAL CHILD CARE WORKERS 
AND SCHOOL STAFF 


8.195.500- 10.162.600 



119 



C. Incidence of Extrafamilial Abuse 

Based on the information outlined above, we have determined that 
millions of adult employees and volunteers come into contact with children and 
youth (about 8 to 10 million in child care and education alone). The next 
piece of the puzzle is how much of all child abuse is perpetrated by those 
individuals working in child and youth settings. Again, there is no simple 
answer. 

Estimates of child sexual abuse involving non-familial perpetrators 
range from as low as 7 or 8 percent to as high as 62 percent of all sexual 
abuse cases; for all types of extrafamilial child abuse, the range is 1 1 to 30 
percent (Dube and Hebert, 1988; Gomes-Schwartz et al., 1990; Margolin and 
Craft, 1989; National Center on Child Abuse and Neglect, 1990; Simon et al., 
1992; U.S. Department of Health and Human Services, 1985). But accurate 
prediction is next to impossible and many authors claim significant 
underreporting. Rindfleisch and Rabb (1984b) assert that only one in five 
complainable cases in residential facilities may have been reported to child 
protection agencies and the complaint rate may be twice as high as 
intrafamilial rates. Fuller (1989) noted that perhaps less than 6 percent of all 
child molestations are ever reported. And the New York State Subcommittee 
on Child Abuse (1983) found that "based on current statutory definitions. . . 
more than 80 percent of all alleged incidents of child abuse and neglect [in the 
foster care setting] are never reported," 65 percent of which are abuse. 

"[W]e do a lot better job of tracking our imports and exports, and the 
hours that we work, and all sorts of economic data than we do in tracking how 
many children are really physically and sexually abused in the United States, 
and how many children die in the United States" (Select Committee on 
Children, Youth and Families, March 1987b). Part of the problem is that 
abuse may be "quite blatant and well entrenched, or it can be quite subtle - so 
subtle, in fact, that supervisory and administrative people in charge may not 
know it's going on" (California Association of Services for Children, 1987). 
Even if questionable staff behavior is uncovered, an agency may struggle over 
whether such incidents actually typify child abuse. How then does an 
organization (or an individual who suspects extrafamilial abuse) arrive at an 
answer? Are specific criteria used to assess the situation? Are these criteria 
applied consistently and across-the-board to all staff? Many child- and youth- 
serving organizations are grappling with these and other related questions. 

D. Identifying "Cidld Abuse": The Need for a Uniform Definition 

Strife over exactly what constitutes child abuse merely accentuates the 
confusion over how many children are abused in out-of-home settings. No 
standard, uniform definition exists regarding extrafamilial abuse. Classifying 



120 



acts of sexual abuse may be more straightforward than categorizing physical 
abuse, the latter of which is thought to be more prevalent but harder to define, 
in part because it is sometimes difficult to distinguish from appropriate 
disciplinary actions and may differ according to context. Defining abuse is 
thus often based on subjective value judgments. This absence of operational 
definitions and guidelines for substantiating all types of institutional abuse 
impedes reporting and intervention in out-of-home care settings. 

Limited definitions for "child abuse" originated from the intrafamilial 
setting. The Child Abuse Prevention and Treatment Act (P.L. 93-247), [later 
amended in the Child Abuse Prevention and Treatment and Adoption Reform 
Act of 1978 (P.L. 95-266)], defines child abuse and neglect as "the physical or 
mental injury, sexual abuse or exploitation, negligent treatment or 
maltreatment of a child under the age of 18, or the age specified by the child 
protection law of the State in question, by a person who is responsible for the 
child's welfare ... as determined in accordance with regulations prescribed 
by the Secretary [of HEW]." But Daro (1988) asserts that there is wide 
discrepancy in the extent to which individual states have adopted the federal 
definition of child abuse: "[TJhere is no single child maltreatment law for the 
United States as a whole; instead there are 50 different laws, each of which 
has its own definition of maltreatment, standards for reporting known cases of 
maltreatment, and its own sanctions against those found guilty of such 
offenses." In addition, child abuse laws fall into two distinct categories -- civil 
child protection laws designed according to the needs of the child and criminal 
child abuse laws aimed at punishing offenders - and their respective 
definitions may differ. 

While discord over how to define acts of child abuse perpetrated by 
employees and volunteers increases reliance on individual judgments and 
frustrates reporting and prevention efforts, other fundamental and well- 
entrenched factors also help perpetuate the problem. One of these is the 
intense disbelief that abuse could ever take place within an organization's own 
ranks; a knee-jerk response triggered by an "it can never happen to me" 
mentality. Two other sustaining factors are what Lanning refers to as (1) 
"public naivety," or a misconception about the offender, and (2) "bureaucratic 
irresponsibility," or an apprehension about confronting the problem (The News 
Chief, September 28, 1984). 

E. Failure to Take Strong Action Against Abuse en Out-of- 
Home Settings 

Historically, there has been an unwillingness to acknowledge and 
confront child abuse which occurs outside the home. While public awareness 
has increased, many child- and youth-serving organizations still vehemently 
and publicly deny that abuse by staff is a problem. "[TJhe nonviolent sexual 



121 



abuse of children is more often dealt with as a nuisance offense. The bottom 
line is that society condemns child molestation in the abstract, but how it 
responds to individual cases depends on the particular circumstances and the 
molester's position in the community" (Lanning, 1987). Identification, 
investigation and prosecution of child molesters may not be welcomed by 
many communities, especially when the offender is considered a pillar of 
society (e.g., the individual committed to multiple worthy causes) or believed 
to be of superior status to the commoner (e.g., a priest). 

Once disbelief wanes, the desire to protect an organization or individual 
worker's own position may surface, thereby minimizing the original problem 
out of existence. As one education attorney explained, "Unfortunately. . .the 
professional reputation of superintendents are at stake. They're not going to 
allow their reputations to be besmirched by rampant reports of violence, 
vandalism and sexual abuse in their own schools. That perhaps is a more 
realistic problem than anything else - the outright reluctance to acknowledge a 
problem" {The News Chief, September 24, 1984). However, this defense 
mechanism is slowly being worn away by an energized victims' movement and 
a growing number of successful lawsuits, as well as other factors. 

Those organizations that have acknowledged the reality of abuse often 
find themselves in a catch-22 situation: Although they are legally required to 
report cases, most strive for minimal publicity and visibility surrounding such 
events. The result has been organizational responses that are, at best, informal 
in nature. The Archdiocese of Chicago (June 1992b) has admitted that before 
1983, very few cases of child sexual abuse were reported to the church. Cases 
that were reported were handled internally and "lumped together with other 
clinical problems, cases of financial misconduct, and other celibacy-related 
problems." An added complication that may prevent organizations from taking 
a strong stand on curbing abuse is the lack of financial and human resources to 
deal with the problem. Rindfleisch and Rabb (1984b) found that almost half of 
the states perceived institutional abuse to be a low-priority issue, in large part 
because they lacked the necessary resources to respond. 

Even parents may choose to overlook or ignore abusive behavior by 
extrafamilial caregivers. Margolin (1991b) studied various contexts in which 
sexually abusive providers come into contact with children and found that in 
1 1 percent of the cases, either the child told the parent(s) that the caregiver 
was touching them or the parent(s) knew that the caregiver had a record of 
child molestation or other criminal activity, yet did nothing to change the 
situation. 

The literature tells us that millions of children spend a substantial 
amount of time in some type of out-of-home setting (be it a child care center, 
school, recreational center, medical care facility or some other institution); at 



8 



122 



the same time, millions of adults occupy positions of trust that put them into 
contact with these children and youth. Given the volume of children and 
adults who pass through the doors of various child- and youth-serving 
organizations and the fact that out-of-home child abuse does occur and may be 
even more prevalent than reported, a closer look at extrafamilial child abuse 
prevention is warranted. In doing so, clearer definitions of extrafamilial child 
abuse, especially physical abuse, and the willingness of child and youth 
organizations to concede that abuse may occur within their own ranks are 
needed. 



H. PREVENTING EXTRAFAMILIAL ABUSE - NO EASY 
ANSWERS 

While consensus on the prevalence of out-of-home abuse may be 
lacking, there is no denying that the problem exists and demands attention. 
Although precise answers on how to best respond are elusive, efforts that 
concentrate on prevention are most desirable. Deciphering the prevention 
puzzle is not without complications and requires the following initial actions: 

► Determining all the steps that can be taken to prevent both initial and 
repeated abuse by child care and youth-service workers; 

► Discerning which responses are most effective in identifying potentially 
abusive employees and volunteers; 

► Weighing the advantages and disadvantages of each strategy; and 

► Assessing the feasibility of each approach, in light of administrative, 
fiscal, technological and political constraints. 

Obviously the most appealing strategy for any child- and youth-serving 
agency would be to have in hand a clear exhaustive checklist of traits proven 
to characterize any and all child abusers. Screening potential employees and 
applicants against such a list would be quick, simple, inexpensive and 
guaranteed. But the reality is that a guaranteed method does not exist and is 
not likely to be developed anytime soon. Until the fervent search yields a 
successful formula for identifying potentially abusive employees/volunteers, 
child- and youth-serving organizations must be resourceful in their hiring and 
screening efforts and consider all available options. 

A. Difficulty in Profiling Child Abusers 

Growing knowledge and awareness of extrafamilial child abuse, 
coupled with extensive media coverage of several exceptional cases, has 
resulted in a flurry of public policy and legislative efforts to protect children 
from such offenders. Of the many responses (e.g., education, strengthening of 



123 



reporting laws, tougher criminal penalties), the area least studied and 
understood is how to identify adults who may potentially abuse children. 
Despite the dearth of tangible information in this area, opinions are abundant. 
All opinions, however, lead to the same conclusion: There is no discernible 
profile of a child abuser and no system will predict with absolute certainty 
whether an employee or volunteer is going to sexually or physically abuse a 
child. 

Margolin and Craft (1989) concluded that "despite literally hundreds of 
studies devoted to delineating the psychological make-up of child sexual 
abusers, there continue to be few reliable ways by which these characteristics 
can be diagnosed. ..." As one former Scoutmaster convicted of molesting 
boys in his troop summed up: "There's no way for sure you can know if you 
have somebody in your organization who's gonna do what I did" (Washington 
rimes, May 20-24, 1991, special series). 

One of the most significant problems is that child abusers may reside 
anywhere within an organization: in direct service, management or agency 
support roles. Offenders run the employee/ volunteer gamut and include day 
care center directors, school administrators, experienced and trusted teachers 
and aides, coaches, doctors and dentists, priests and other religious personnel, 
janitors, bus drivers, security personnel and even relatives of child care 
providers. Finkelhor and Williams (1988) found that 58 percent of reported 
sexual abuse cases in day care were committed by a person who was not a 
part of the professional day care staff; perpetrators included janitors, bus 
drivers and some outsiders with no role in the facility at all. A quarter of the 
cases involved non-employee husbands and sons of the day care directors and 
teachers. A review of child sexual abuse cases within Big Brothers/Big Sisters 
of America revealed that 10 percent involved professional staff, including 
executive directors and board members (Wolff, 1986). And of the 43,000 
active priests in the United States, it's estimated that 6 percent have 
pedophiliac tendencies (Washington Post, November 15, 1992). 

While extrafamilial abuse can be perpetrated by males or females, men 
are more often identified as the perpetrator. Finkelhor and Williams (1988) 
found that even though women made up 40 percent of the abusers in their day 
care sample, men were still responsible for the majority of abuse while 
accounting for only an estimated 5 percent of the staff. Other studies have 
found that males commit between 42 and 95 percent of the abuse (Fuller, 
1989; Margolin, 1991a; Margolin and Craft, 1989). 

Adolescents as an offender subgroup are receiving increased attention, 
in large part because of the prevalence and often more violent nature of their 
abuse. Many authors also argue that adolescence is the common age of onset 
for child sexual abuse. 5 Studies have shown that adolescents perpetrate 



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between 25 and 47 percent of physical abuse and from 14 to 83 percent of 
sexual abuse (Dube and Hebert, 1988; Finkelhor and Williams, 1988; Gomes- 
Schwartz et al., 1990; Margolin, 1991a, Margolin and Craft, 1990). And 
according to the Statistical Abstract of the U.S.: 1992, of the over 1.75 million 
arrests of children under 18 in 1990, 15 percent were for violent offenses, 
over half (8 percent) of which were for sex offenses or offenses against 
family/children. 

Groth and his colleagues (1982) explain that "all too frequently, sexual 
offenses by juveniles are dismissed as merely adolescent sexual curiosity or 
experimentation. Since such offenses go unrecognized by the criminal justice 
and mental health systems, they are not addressed. No intervention occurs 
until the offender is an adult; by then, many sexual assaults and victimizations 
may have occurred which might otherwise have been prevented." As depicted 
in Figure A on the next page, 40 percent of the 165 juvenile sex felons 
committed to Washington State's Division of Juvenile Rehabilitation in 1991 
had a prior criminal history, 12 percent of which were for felony sex offenses 
(Washington State Institute for Public Policy, 1992). The recognition that 
abusive behavior may begin early in an offender's life and persist for the 
majority of his/her years is particularly distressing. 

B. The REcrorvisnc Nature of Child Abuse 

Whether the offender is male or female, young or old, child abuse is 
rarely a one-time event and often involves multiple victims. "Given that many 
sex offenders have established a repetitive pattern of deviant behavior prior to 
an arrest. . . we can expect many sex offenders to repeatedly commit sex 
offenses" (Furby et al., 1989). In a 1986 National Institute of Mental Health 
study of over 400 child molesters, offenders admitted to committing over 
67,000 instances of child sexual abuse, an average of 117 victims per abuser; 
those targeting young boys averaged 281 (Senate Judiciary Committee, 
November 1991). Other studies place the average number of victims at 
anywhere from 7 to 100 (Conte et al.., 1989; Gilgun and Connor, 1989; 
Rogers and James, 1991). 

Even those offenders who are discovered and convicted often return to 
their old ways. A recidivism study by Rice and colleagues (1991) found that 
close to one-third of extrafamilial sexual offenders were convicted of a new 
sex offense; 43 percent committed a violent or sexual offense. In a 
compilation of sex offender recidivism reports, the Washington State Institute 
for Public Policy (1992) revealed that 10 to 29 percent of child molesters who 
abused girls and 13 to 40 percent of child molesters who abused boys repeated 
the offense. The Institute also found that of those adults convicted of felony 
sex crimes in Washington (fiscal year 1992), one-third had a prior criminal 
history; 44 percent of which were for felony sex offenses (See Figure A). 



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Figure A: Percentage of Convicted Adult and Juvenile Sex Offenders in 
Washington State Having a Prior Criminal History; Percentage of Each with 

Prior Felony Sex Offense 





Prior Criminal History P>-|or Fa lony Sex Offense 

18888 ftauits ^^ Juveniie6 



Source: Washington State Institute for Public Policy, 1992 

In a separate California study, the results of a 15-year follow-up of 
1,362 sex offenders first arrested in 1973 showed that almost half were 
rearrested for some offense, 20 percent for a subsequent sex offense (Lewis, 
1988). Reported recidivism rates, according to Furby and her colleagues 
(1989), have ranged from to 50 percent, a range "exceeded only by the array 
of statutes and policies applied to sex offenders. " 

Two cases illustrate the seriousness of the multiple victim problem: In 
Washington State, a man was arrested in April 1991 for molesting nearly 200 
children in Washington, Oregon, Montana, Idaho and California. His first 
conviction dated back to 1969. In another case, a school psychologist was 
convicted in 1985 of child molestation in Maryland and after serving time 
there later moved to Virginia where he was again hired as a school 
psychologist. Six months later he was arrested for molesting 15 elementary 
school students (Congressional Record, June 27, 1991). Advocates of criminal 
record checks are quick to cite cases such as these to support the need for such 
background checks. 



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The overall message is clear: child abusers cover a wide spectrum and 
the "severity, number and type of victims, and permanence of the features 
vary from one child molester to the next and also vary with the passage of 
time in the same abuser" (Fuller, 1989). When screening for a history of or 
potential for child abuse, organizations need to understand that offender 
characteristics differ not only between physical and sexual child abusers, but 
also within subgroups of sexual child abusers (e.g., situational and 
preferential). Given the complexity and diversity of the offender population, 
can any one type of screening be effective in identifying a potential offender? 
The answer, to date, is unclear. 

C. Limitations of Attempting to Profile Offenders 

Due to the complex nature of child abuse and the general 
unpredictability of human nature, any attempts to assess the potential for 
abusive behavior should be broached with extreme caution. Tables 2 and 3 list 
a series of offender and situational characteristics thought to be linked with 
abuse, in particular sexual abuse. 6 These indicators are not gospel and should 
not be used impetuously and indiscriminately to label someone as a child 
abuser. Concerned readers should withstand the temptation to cull any one 
random characteristic, isolated from the slew of other possible contributing 
factors, as evidence that an applicant will abuse children. Even in 
combination, accurate prediction based on these attributes is just not possible. 
The appeal of basing an employment or volunteer placement decision solely on 
these variables should be resisted for several reasons: 

1) all people will not exhibit all traits; 

2) these indicators do not quantify the degree of risk (high, medium, low) 
for abuse and under what conditions it may occur; 

3) factors associated with initial abuse are not necessarily the same factors 
connected to repeated or future abuse; 

4) abusive behavior often involves a unique interaction between victim, 
situational and offender characteristics, which may differ widely among 
individuals; and 

5) no documented evidence of predictive validity exists. 



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TABLE 2: Possible Offender Characteristics 
Traits and Behavior Patterns 



Predisposing 



frequent and unexpected moves 

low self-esteem and ego-strength 

inappropriate expectations of child behavior 

life stress 

depression 

unable to form attachments 

alcohol and drug use 

dysfunctional home situation 

history of psychiatric problems 

or mental illness 
skilled at identifying vulnerable victims and 

manipulating children 
abused/neglected as a child 
feelings of inadequacy and helplessness 
poor impulse control and inability 
to handle frustration 
limited social contacts as teenager 
premature separation from the military 
unstable work history, min. responsibility 
distorted beliefs about sex and children 
prior arrests (for all kinds of offenses) 
shows sexually explicit material to children 
places premium on doing one-to-one activities 
with children 



over 25, single, never married 
if married, spouse inadequate, doesn't 
meet needs 

excessive interest/overinvested in children 
associates and circle of friends are young 
limited peer relationships 
social isolation 
age and gender preference 
refers to children as "clean", "pure," 
"innocent" 

inadequate understanding of 
children's developmental phases 
identifies w/children better than w/adults 
legitimate access to children (i.e, 
occupation) 

activities with children often exclude 
other adults 

seduces with attention, affection and gifts 
hobbies and interests appealing to 
children 

youth-oriented decorations in home 
frequent photographing of children 
prefers low visibility activities 
failure to set limits with children 



TABLE 3: Possible Situational/Organizational Risk Factors 



institutional constraints and lack 

of cooperation among various departments 
conflicting interests of staff and clients 
limited resources and staff support systems 
high rate of staff turnover 
perceived organizational inflexibility 
staff/child ratio 
number of children in care 
(is it at full capacity, over/under limit) 
limited staff training and/or knowledge 

and understanding of parenting skills 
lack of well-defined and articulated 

philosophy on caretaking/child management 
lack of written guidelines/safeguards on 

disciplinary procedures and policies 
organizational stresses (layoffs, budget cuts) 
compliance with laws, statutes and regulations 
minimal amount of informal peer observation 



lack of clear/distinct line of command and 

central, decision-making authority 
lack of open communication and 

information systems 

lack of positive, reinforcing environment 
perpetrator's access to child 
presence of non-related caretaker 
lack of opportunities/mechanisms for staff 

to seek supervisory assistance 

lack of facility director's involvement 

in all aspects of agency operations 
agency's practice of matching children 

to caretaker/volunteer 
community visibility and accessibility of 

setting 

lack of adequate health care/medical tint 

degree to which certain programs/classes 

are separated and isolated 



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As discussed, the presence of the above characteristics is not 
completely indicative that abuse will occur. However, such attributes can be 
useful in developing diagnostic tools for evaluation agencies and set the stage 
for future prediction research. In addition, certain traits may provide triggers 
for further "investigation," or in some cases, may be grounds forjudging an 
applicant as unsuitable to work with children (e.g., "shows sexually explicit 
material to children"). 

Given our understanding about the dynamics of extrafamilial abuse and 
the fact that to date, efforts to profile and identify offenders have been largely 
unsuccessful, what other lines of defense are available to child- and youth- 
serving organizations to prevent abuse by employees and volunteers? Some 
concerned individuals feel that the time is ripe to step up legislative and 
regulatory efforts to build a more solid wall in preventing access to children. 
Attempts to create such a strong legal foundation are not without criticism. 



ffl. NATIONAL INITIATIVES 

The desire to more effectively prevent out-of-home child abuse, 
together with growing fear about agency liability, has accelerated the quest for 
screening methods to systematically identify child and youth service workers 
who are unsuitable to work with or around children. In the last decade, this 
quest has settled in the legislative arena. Since the early 1980s, the trend 
toward criminal record checks for employment and licensing has intensified, 
targeting not only the operators and employees of child care facilities, but also 
teachers and youth development/recreation workers. Federal legislative 
success, however, has been limited in scope and hampered by lack of funding. 

A. Early Efforts 

In December 1982, the President's Task Force on Victims of Crime 
recommended making sexual assault, child molestation and pornography arrest 
records available to those whose employees come into regular contact with 
children. In early 1983, Sen. Arlen Specter (R-Penn.) failed to gain the 
necessary backing for legislation to prohibit employment of any individual in 
juvenile detention, care, correction or treatment facilities who had not 
undergone a nationwide FBI check. Later that year, Sen. Charles Grassley (R- 
Iowa) introduced legislation addressing employment of those with arrest/ 
conviction records for child sexual assault, child molestation or child 
pornography and proposed creating a centralized registry of all state and 
federal arrests and convictions for these offenses, to be termed the "Child Care 
Protection and Employees Responsibility File." Concerns about increased 
administrative and bureaucratic problems and the potential for abuse of a 
special federal "sex crimes" file prevented passage of the legislation 



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(Davidson, 1985). However, the idea of creating a national file of criminal 
child abuse-related records would resurface. 

The "Children's Defense Act of 1984" addressed the cost of criminal 
record checks; timeliness of the states' reporting of conviction data to the FBI; 
the FBI's response time to state record check requests; and the security and 
confidentiality of criminal history records at the state level. This legislation 
also died in Congress. But Rep. George Miller (D-Calif.) and Sen. Dennis 
DeConcini (D-Ariz.) thereafter introduced legislation, which passed as the 
DeConcini-Specter Amendment included in the 1985 Fiscal Year Continuing 
Appropriations Act, P.L. 98-473. This amendment tied Title XX funding to 
state laws mandating nationwide FBI criminal record screening of employees 
in "any facility having primary custody of children for 20 hours or more per 
week" as well as all juvenile detention, correctional and treatment facilities. 
Congress gave the states less than a year to draft, enact and have in effect the 
criminal background legislation, and also directed the Department of Health 
and Human Services (DHHS) to develop a Model Child Care Standards Act to 
help guide implementation. 

The effect of the DeConcini-Specter Amendment has not been 
extensive. Not all states enacted legislation for criminal background screening 
laws, and the program was not funded beyond fiscal year 1985 (Senate 
Committee on the Judiciary, November 1991). Moreover, the DeConcini- 
Specter Amendment fell short by failing to address several issues, including: 
whether the large number of unregulated child care providers should be subject 
to screening requirements to the same extent as those currently licensed; how 
the criminal history information should be used in decision-making; to what 
extent the confidentiality of the criminal history information must be 
maintained; what steps should be taken to increase completeness of state and 
FBI criminal record repository data; who should bear the financial burden 
associated with criminal record checks; what steps should be taken to minimize 
delays in processing the requests; what consequences should flow from failure 
to seek or act properly on record information; and what the role o/ the federal 
government should be in implementing and monitoring screening. (Davidson, 
1985). 

The Model Child Care Standards Act, which DHHS issued in 1985 to 
help assist in the implementation of the DeConcini-Specter Amendment, was 
not particularly helpful in settling these issues. Although it discussed many of 
the issues in using criminal history information to screen child care workers 
and was useful as a general guide to employment history and background 
check regulations, it contained few specific recommendations on these matters. 

Of greater assistance in resolving these issues was a 1986 Model Statute 
entitled "Employer Access to Sex Offense Criminal History Records." The 



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Model Statute, developed by the U.S. Department of Justice in collaboration 
with the ABA's Criminal Justice Section, was a commendable effort in 
drafting screening legislation. It recommended that all convictions, pending 
arrests and two or more arrests not resulting in conviction be released to 
organizations whose employees regularly render services to children. This 
information was intended to provide employers with a tool to make more 
informed hiring decisions. Employers were not compelled to conduct criminal 
background checks on all employees because, as stated in the Model Statute, 
such a requirement "may result in unwarranted administrative and financial 
hardship for both the employer and the disseminating agency." Nonetheless, 
to encourage criminal record checks, the Model Statute provided for employer 
liability to injured children when available sex offense information was not 
obtained and the subject employee injured a child. Thus, an employer seeking 
to minimize the risk of liability would conduct criminal background checks. 
Also of note is the Model Statute's authorization of reciprocal agreements to 
exchange information with other states and the federal government, thereby 
providing a framework for the development of a national sex offense criminal 
history network. However, the Model Statute was simply a guide for state 
action. Moreover, it only addressed access to sex offenses, and not other 
relevant criminal history information. 

B. More Recent Federal Initiatives 

The last several years have brought a flurry of Congressional proposals 
regarding child abuser registration and screening - from registering convicted 
offenders' addresses for 10 years after their release from prison, parole or 
supervision to permitting child care facilities to run background checks by 
using the "instant check" system proposed for firearm purchasers. 

Only one of these proposals was enacted. In 1990, Congress passed 
Public Law 101-647, the Crime Control Act of 1990, which included Subtitle 
E: Child Care Worker Employee Background Checks. Subtitle E mandated 
state and federal (FBI) fingerprint checks of all existing and prospective 
employees in federally-operated or federally-contracted child care agencies. In 
addition, Subtitle E encouraged checks on volunteers, adult household 
members in places where child care or foster care services are being provided, 
and others who may have contact with children. To date, no formal 
documentation exists evaluating the implementation and effectiveness of 
Subtitle E in screening out potential offenders. 7 

In November 1991, the Senate Judiciary Committee held a hearing to 
discuss the National Child Protection Act of 1991. The proposed legislation, 
popularly termed the "Oprah Bill" after its major proponent, talk show host 
Oprah Winfrey, included the finding that "[fjhere is no reliable, centralized 
national source through which child care organizations, including voluntary 



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organizations, may obtain the benefit of a nationwide criminal background 
check on persons who provide or seek to provide child care" (Senate 
Committee on the Judiciary, November 1991). 

The proposed act sought to establish a national background check 
procedure for child care providers; encourage reporting of all state and federal 
child abuse crimes to the FBI's National Crime Information Center; and 
establish minimum guidelines for states to follow in conducting background 
checks. The proposed bill also required states, within three years of 
enactment, to achieve at least 80 percent of final dispositions "in computerized 
criminal history files for all identifiable child abuse cases" in which there had 
been action within the last five years. Proponents of the legislation argued that 
creating a comprehensive national background screening system would prevent 
"literally thousands of dangerous criminals" from obtaining jobs that give them 
access to children (ibid). Although this effort was not controversial, it died in 
late 1992 as part of a larger crime bill. Its advocates have continued the fight 
by reintroducing the legislation in early 1993. Sen. Joseph Biden (D-Del.) and 
Rep. Patricia Schroeder (D-Colo.) have each introduced criminal background 
check legislation (S.8 and H.R. 1237, respectively) similar to the proposed 
1991 bill. 

Congressional leaders and policymakers at the national level are not the 
only ones in pursuit of a structure to support criminal background screening. 
Various state regulatory and licensing agencies, too, have strengthened certain 
employment and licensing requirements to help prevent the abuse of children 
by child care and youth-service workers. In addition to criminal background 
screening through the FBI and state criminal history repositories, state-level 
activities have delved into the use of state child abuse and sex offender 
registries. (Please refer to Section VI for a discussion of these registries.) 



IV. STATE SCREENING LAWS: 
A MYRIAD OF APPROACHES 

State screening laws generally fall into two categories: (1) licensing 
standards requiring or permitting a licensing agency or licensed facility to use 
certain screening methods, including criminal background checks, in issuing 
licenses or hiring employees/ volunteers who work with children; and (2) 
provisions permitting organizations access, through an authorized state agency, 
to child abuse or state and/or federal criminal records for screening purposes. 
Within each of these categories, there is wide variety in scope and application. 
Further, not all state legislation authorizes child-serving and volunteer 
organizations access to records in screening workers. Thus, the ability to 
conduct criminal background checks before hiring a child care or youth-service 
worker may be limited by the reach of the licensing statutes. 



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A. Licensing 

All states have some legislation regulating day care facilities and in 
most states, this includes a requirement to screen at least some of the workers 
using criminal records. However, as the literature reveals, the types of 
facilities covered, the extent to which screening of workers is required, and 
the scope of the screening, varies considerably (Bulkley and Jackson, 1989). 

State licensing and registration provisions generally cover specific 
categories of facilities, which may or may not encompass the myriad of 
entities that provide care for children. Typically, states may require criminal 
history record screening in one or more of the following settings: (1) child 
care centers, (2) group homes, (3) child-placing agencies, (4) child-caring 
institutions and residential settings, (5) independent foster homes, (6) family 
day care homes, (7) educational facilities, (8) sources of transportation to 
educational facilities, and (9) adoptive homes (Davidson et al., 1991). 

Adams (1990) provides interesting statistics documenting some of the 
variety in types of child care facilities regulated: 

► Although one-third of all child care centers are operated by religious 
institutions, 14 states (28 percent) fully or partially exempt such child 
care programs. 

► A substantial majority of the states (59 percent) fully or partially 
exempt those programs operating in public schools. 

► More than half of the states (55 percent) exempt all youth programs 
operating in adult recreational facilities from all licensing requirements. 

There is further variety in screening based on the category of worker. 
With respect to criminal record screening requirements, some states exclude 
people who have resided in the geographic area for a substantial period of 
time. Some states also exempt from the screening process people who do not 
have contact with children or who are always supervised by someone while in 
the presence of children (such as limited time volunteers). In addition, 
screening requirements may or may not apply to parent-volunteers (Davidson 
etal., 1991). 

Compounding the variety in terms of facilities and persons covered, 
state regulations of child care and youth-serving personnel vary with respect to 
the screening methods used. Required methods may include employment 
history and reference checks, local and statewide criminal record checks (by 
name or fingerprints), FBI criminal record checks (requiring fingerprints and 
generally done through a state agency), child abuse registry checks, and sex 



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offender registry checks. (Please refer to Section V for a detailed discussion 
of criminal record checks.) 

Several states having fairly comprehensive screening legislation are 
discussed in the literature. Florida, for example, enacted legislation in 1985 
requiring screening of employees, operators, volunteers and job applicants of 
child care, residential facilities, mental health, alcohol and drug abuse 
programs, and certain other programs. The screening methods mandated in 
Florida include state and federal criminal background checks (by fingerprint) 
and employment history checks. 8 New York also has broad screening 
legislation. New York City's screening regulations, implemented in 1984, 
require checks with past employer references, criminal background checks (by 
fingerprint), and checks with the state list of New Yorkers indicated for child 
abuse and neglect by the Department of Social Services (Rollins, 1985). 

B. Access to Criminal History Information 

Access to information contained in criminal files is generally restricted. 
In recent years, however, there has been a trend towards making criminal 
history information more available to noncriminal justice agencies, private 
individuals and organizations, and the public. States have passed laws 
authorizing criminal record access to youth-serving and volunteer organizations 
that provide care, treatment or services to children. As Thomas Wilson of 
SEARCH Group, Inc. pointed out in 1988, "[T]he movement towards open 
records is happening in a de facto manner: through piecemeal legislation, 
through forces for change by interest groups going to their legislatures, by the 
challenges brought forth by groups such as the Reporters Committee for 
Freedom of the Press, by changes in FBI policy and by increasing access to 
criminal history record information by federal noncriminal justice agencies" 
(Bureau of Justice Statistics, November 1988b). In addition, some states have 
enacted public records laws that, to a greater or lesser extent, make criminal 
history records available to private entities (Bureau of Justice Statistics, 
November 1988a). But despite tne trend, the Bureau of Justice Statistics (BJS) 
maintains that criminal justice officials still enjoy some discretion regarding 
noncriminal justice use of records: "[I]n many states the actual extent of 
noncriminal justice access to records held at the repository is more limited 
than it would appear from a reading of the state statute" (ibid). 

Specific Access Legislation 

Variety continues to be the watchword with respect to legislation 
granting private individuals and organizations access to criminal records for 
employment screening purposes. As the ABA Center on Children and the Law 
found, some states permit access regarding persons applying or volunteering 
for positions in which they will have supervisory or disciplinary power over a 



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minor; others allow access to youth-service agencies or certain entities 
providing recreational, social, educational or child safety services to children 
(Davidson et al., 1991). Robert Belair, a Washington lawyer and general 
counsel for SEARCH Group, has observed some general patterns in state 
legislation granting noncriminal justice entities access to criminal history 
records, including the "clear distinction between conviction information and 
nonconviction information: state agencies demonstrate some willingness to 
release the former and almost no willingness to release the latter" (BJS, 
November 1988a). 

In pe.mitting access to criminal history information under these 
circumstances, a few states have set forth eligibility requirements that a private 
entity must meet in order to be able to obtain the information. For example, 
Arizona, Illinois, Iowa and Kentucky have established an authorized body to 
review an entity's request and decide whether its activities fall within 
statutorily authorized boundaries. Other states require volunteer organizations 
seeking criminal record access to enter into agreements setting forth the access 
terms, including indemnification, information security and confidentiality. For 
example, Kansas has "non-disclosure agreements" and Illinois has "private 
organization volunteer agreements" (Davidson et al., 1991). 

Public Records Laws 

During the past 15 years, states began enacting, (and others recently 
began considering) versions of public records laws. In some states, these laws 
are quite far-reaching. Florida, for example, permits anyone to request the 
state criminal record of any other person upon payment of a fee and the 
provision of certain information regarding the subject (name, sex, race, date of 
birth, social security number and address). Other states are more restrictive 
and may expressly require a subject's consent or effectively do so by requiring 
certain information, such as fingerprints, state identification number or a 
description of the specific, reportable event identified by date and agency or 
court. In addition, until 1990, at least one state (Texas) had interpreted its 
records law to disallow access to criminal record information. Texas' open 
public records law was amended in 1990 and the Texas Attorney General 
subsequently issued an opinion that an individual has a special right of access 
to his/her criminal records and may authorize someone else to obtain those 
records (ibid). The National Conference of Commissioners on Uniform State 
Laws adopted model state legislation making conviction data available to the 
public, provided that requesters supply certain important information; all 
nonconviction information would be unavailable (BJS, November 1988b). 

Child care and youth-serving organizations in these states may be able 
to conduct criminal record checks, at least with respect to state records, by 
complying with the requirements set forth in the public records laws. 



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V. USE OF CRIMINAL RECORD CHECKS FOR 

PRE-EMPLOYMENT AND LICENSING PURPOSES 

In the past two decades, the creation of a national criminal history 
information system has flourished. Although criminal history information 
systems were originally designed with the sole needs of criminal justice 
agencies in mind (e.g., using the records for investigation, arrest, bail setting 
and sentencing purposes), today's typical "user" of criminal history 
information is likely to be a noncriminal justice agency seeking to make a 
more informed hiring or volunteer placement decision. This leads not only to 
questions of whether criminal records are accessible to public and private 
employers, but also to what extent such use is appropriate and effective in 
screening out potentially abusive child care and youth-service workers. 

Given the nature and intensity of state and federal legislative and 
regulatory efforts regarding criminal background checks, one is inclined to 
believe that use of criminal history information by public and private 
employers is indeed appropriate. Whether it is highly effective in weeding out 
employees/volunteers who may harm children is of great debate. 

According to Davidson (1986a), "Although new pre-employment record 
screening laws have become the single most common legislative response to 
the out-of-home abuse problem, their immediate promised impact of 'screening 
out' child molesters has been minimal." Of major concern is the quality, 
relevance and likelihood of obtaining criminal history records. Many insist 
that arrest and conviction records paint a limited picture of the prevalence of 
the child abuse problem. 9 In their work with convicted sexual offenders, 
Groth and his colleagues (1982) found that offenders committed from two to 
five times as many sexual assaults as appear on record; child molesters 
admitted to an average of five offenses for which they were never caught. 

So Why Conduct a Criminal Record Check? 

Probably the two most predominant counterarguments to skeptics of 
criminal record checks are that (1) identifying even one child offender may 
save hundreds of children from abuse and (2) conducting criminal record 
checks deters many potentially abusive individuals from applying to positions 
which give them access to children. (The deterrent claim, however, presumes 
that an individual has a criminal record on file waiting to be disclosed.) 
Child- and youth-serving organizations may also employ criminal record 
checks because the checks serve as an objective, independent source of 
background information and are not contingent on an individual's willingness 
to be candid. In addition, criminal record checks serve as a visible indicator 
of an organization's commitment to preventing abuse and are fast becoming a 
necessary protection against liability and negligence. 



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Background on Criminal History Information Systems 



10 



Pursuant to federal legislation, the U.S. Attorney General collects and 
maintains criminal records. The Attorney General is authorized to exchange 
this information with state and local governments and law enforcement entities; 
a responsibility the Attorney General has delegated to the Federal Bureau of 
Investigation (FBI). Currently, the FBI maintains criminal record information 
through (1) the FBI Identification Division, which houses the fingerprint 
record repository and (2) the National Crime Information Center (NCIC), 
which contains the Interstate Identification Index (III). The latter is a 
telecommunications system linking federal and state files, which also interfaces 
with the FBI Identification Division. 

The FBI has maintained a national criminal history record repository in 
the FBI Identification Division since 1924. The development of computerized 
information systems did not arise until 1967, when the NCIC was established 
to provide criminal justice agencies with 24-hour-a-day access to automated 
files on wanted and missing persons and stolen property. This advancement 
led to the implementation of an on-line Computerized Criminal History system 
(CCH) in 1971, which served as a national repository of offender criminal 
history files for law enforcement purposes only. CCH was phased out in the 
late 1970s, due to lack of participation by the states, and replaced with the 
Interstate Identification Index (III). 

The III facilitates interstate and federal/state exchange of criminal 
history records for both criminal and noncriminal justice purposes (e.g., 
employment and licensing) and serves as a "pointer" to refer agencies to more 
complete state or federal files. When fully operational, the III will serve as a 
national index to link together state repositories. Of the 20 states currently 
participating in III, an average of 52 percent of the files are available. An 
additional 22 states plan to participate within five years (BJS, March 1991). 
Criminal records of non-participating III states are only available through a 
standard FBI fingerprint check. 

As of December 1989, there were over 45.6 million individual 
offenders in state criminal history repositories; an increase of almost 32 
percent from 1984. Over 6 million arrest fingerprints were submitted to state 
repositories in 1989 alone (approximately one-fourth of which were returned as 
unacceptable). At the federal level, the FBI maintains over 26.4 million 
criminal records; 14.4 million of which are automated and available through 
III (BJS, January 1992). In March 1991 alone, the FBI received 
approximately 427,000 criminal fingerprint cards, of which over 8 percent 
were returned because they were illegible and could not be classified. (This 
translates to an annual rejection rate of close to 400,000 prints, many of which 
are never resubmitted.) Also in that one month, the FBI received 



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approximately 223,000 dispositions and processed 1.4 million III name-check 
requests. Some 346,000 III fingerprint record requests came in follow-up to 
the name checks (ibid). 

It should be noted that the FBI generally cannot disseminate criminal 
records directly to private employers, but organizations can access FBI records 
through a designated state agency which serves as the authorized middle- 
man." In addition, access to juvenile records is limited. A November 1989 
Bureau of Justice Statistics survey reported that 75 percent of state law 
enforcement agencies have policies for sealing juvenile records, 79 percent for 
expunging such records. However, President Bush's March 1991 Violent 
Crime Control Initiative led to the authorization of the FBI to collect records 
of juvenile offenders from state agencies willing to cooperate. While states 
are not required to forward juvenile records to the central repository, they 
now may be encouraged to do so (Ritchie, 1993). 

B. Child Offender Arrests and Convictions Are Lacking 

Despite what seems like a voluminous amount of criminal history 
records on file, arrest and conviction records for child offenders are often hard 
to come by. The Select Committee on Children, Youth, and Families (March 
1987b) asserts, "While nearly all States report involvement of Child Protective 
Services with law enforcement agencies, they cannot report the rate of 
indictment, prosecution and/or convictions related to child abuse and neglect, 
nor are they able to report the percent of substantiated cases of abuse and 
neglect which are referred to law enforcement authorities. " The Department 
of Justice acknowledged that "Many [extrafamilial child sexual abusers] have 
previously been arrested for violent or exploitative acts against children - 
some a number of times. However, if they have not been convicted . . . 
privacy laws deny their employers or potential employers access to their 
records." The result, according to the Justice Department, is that "the vast 
majority of arrested child sex abusers are able to go from job to job with little 
fear that arrests in connection with previous employment will ever be 
discovered by future employers" (U.S. Department of Justice, May 1986). 

Arrests for child offenses grew faster than any other type of arrest from 
1969 to 1990, yet the Justice Department has indicated that 90 percent of all 
child abuse cases do not go forward to prosecution (Senate Judiciary 
Committee, November 1991 and May 1989). The "funnel effect" 
characteristic of other felony offenses, (i.e., at each stage of the adjudication 
process the number of offenders dwindles, leaving only a few to be sentenced 
to terms over one year), is also prevalent in child abuse crimes (BJS, 
December 1984). 



24 



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Other studies confirm this phenomenon. Los Angeles school district 
officials revealed that of the over 8,300 reported child abuse cases in 1988-89, 
only 7 to 10 percent were actually prosecuted, about 3 percent ending in 
convictions (Daily News, December 1990). And Finkelhor and Williams 
(1988) found that of all substantiated sexual abuse cases in day care, just over 
a quarter (26 percent) ended in conviction. Although the large majority of 
those convicted spent time in prison (88 percent), more than half could expect 
to be back on the streets before their victims finished the first grade. 

When the scope is broadened to include substantiation of any type of 
criminal behavior, the statistics are not much different. The Bureau of Justice 
Statistics reports that about 6 percent of the people are responsible for as much 
as 70 percent of the violent crimes (BJS, January 1992). The probability of 
arrest for most crimes is 15 percent and when an arrest does occur, the 
charges are dropped or dismissed in over half of the cases (House 
Subcommittee on Civil and Constitutional Rights, October 1987). Of all 
felony arrests presented by police for prosecution, 52 percent are rejected at 
screening, dismissed or diverted without plea before trial, or result in an 
acquittal. Fewer than 25 percent of those arrested are found guilty of the 
offense for which they were arrested. In addition, the Bureau of Justice 
Statistics found that the percentage of felony arrests resulting in felony 
convictions is as low as 6 percent in some states (ibid). 

C. Likelihood of Discovering a Person with a Criminal Record 

Based on what we now know about arrests and convictions, the 
pervading question then becomes: What are the chances that a criminal 
background check on those working with children will reveal prior criminal 
activity? For child offenders, it is slim - and this is one of the biggest 
criticisms about the use of criminal record checks for screening purposes. The 
case of John W. Shaver, a former day care center operator, illustrates this 
problem. In 1983, the state of Hawaii revoked Mr. Shaver's day care license 
after complaints of child abuse. No criminal charges were brought against 
Shaver in this case; however, about a year later, Shaver pleaded guilty to a 
misdemeanor count of operating another preschool from his Hawaii home 
without a license. Shaver left Hawaii and two years later opened a day care 
center in Florida, where he was arrested and charged with possession of child 
pornography. While Florida had conducted a criminal background check on 
Shaver, nothing turned up because the Hawaii case did not involve criminal 
charges {Honolulu Advertiser, February 4, 1990). 

In fact, the likelihood that any child abuser will have a criminal record 
ranges from 1 to 15 percent, averaging around the 5 percent mark (BJS, April 
1987; Davidson etal., 1991; DHHS, 1985; Finkelhor and Williams, 1988). 
Even if there is a record of a sex offense, it does not always indicate if the 



25 



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victim was a child or an adult. In addition, while 95 to 97 percent of day care 
workers are female, 80 to 85 percent of FBI records are on males, further 
limiting the probability of identifying a female offender (DHHS, 1984a). 

Most statistics on criminal record "hit" rates are discouraging, often 
landing below 1 percent and sometimes creeping above 5 percent. The Senate 
Judiciary Committee (November 1991), however, did issue an encouraging 
word: within one year, six states using criminal background checks identified 
more than 6,200 individuals convicted of serious criminal offenses (including 
child abuse, sex offenses and violent crimes) who were seeking jobs as child 
care providers. (Readers should be aware that because the total number 
screened was not indicated, the actual percentage hit rate cannot be 
ascertained.) Other findings provide a more complete, although less favorable, 
picture of criminal record checks. Below are several states' experiences in 
conducting criminal record checks to screen out unsuitable child care and 
youth-service workers: 

• Out of the 1 15,333 people screened in FY '91 against the Texas Department 
of Public Safety criminal histories, only 860 (.7 percent) had relevant criminal 
history matches; out of 309 FBI fingerprint checks done on new Texas 
residents, only 9 (3 percent) were identified as having a criminal history 
(Senate Judiciary Committee, November 1991). 

• Fingerprint checks on over 21,700 New York City child care workers yielded 
only 170 hits, a less than 1 percent hit rate. Only 14 were for sexual offenses 
and 4 for endangering the welfare of a child; almost half of those with records 
were custodial staff (Gordon, 1986-87). 

• Only 2 of 3,000 people screened in Florida (.07 percent) were identified as 
having criminal histories, only one of these for sex crimes (DHHS, 1985). 

• A statewide fingerprint check of 570 day care operators/employees in Georgia 
resulted in only a single "hit" (.2 percent); name checks of 2,400 identified 
only 2 others (.08 percent) (DHHS, 1985). 

• Out of 2,000 checks on foster and adoptive parents in Connecticut, less than 
75 had a criminal record, a rate of about 4 percent (Davidson et al., 1991). 

• Of the 9,000 child care providers checked in Massachusetts during the first 
half of 1990, 46 were disqualified and 25 were approved with convictions; 
this translates into .8 percent with any type of conviction, but only .5 percent 
that were deemed relevant (Davidson et al., 1991). 

• In New Hampshire's first year of criminal background checks on all day care 
providers, employees and adult household members, only 8 applications out of 
about 250 processed (3.2 percent) were denied {Boston Globe, November 25, 
1984). 

• In 1987, Broward County's police department processed criminal record 
checks for 5,315 potential school employees and denied from 4 to 6 percent of 
applicants due to felony convictions, the majority of which were for drug 
offenses (Zakariya, 1988). 

26 



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D. The Growing Use of Criminal Records for Employment and 
Licensing Purposes 

The controversy surrounding the use of criminal records for 
employment and licensing purposes has escalated with the growing number of 
noncriminal justice agencies adopting this practice. In some states, the number 
of requests from noncriminal justice agencies for employment and licensing 
purposes has exceeded that from criminal justice agencies. The Office of 
Technology Assessment (1982) found that 53 percent of all FBI records 
requests were made by noncriminal justice users, with the Department of 
Defense and the Office of Personnel Management accounting for about 30 
percent and state and local agencies for the other 23 percent. As of 1983, 
over 3.7 million criminal records had been reviewed for employment purposes 
(Gordon, 1986-87). 

The range of employers and licensing agencies that can access state and 
federal records is growing rapidly; there are now over 64,000 authorized users 
of the FBI system (BJS, March 1991). New York allows or requires 
government agencies, schools, day care programs, museums, hospitals, banks 
and law enforcement agencies to screen criminal records for employment 
purposes — and nonconviction data may be disseminated. California authorizes 
screening for auto mechanics, barbers, cosmetologists, optometrists, liquor 
store owners, pest control employees, real estate brokers and notary publics, 
among others. Youth-service organizations in California can also access 
records. 

A report examining the effects of Florida's open records policy found 
that some 760 agencies and organizations that can search the state records - 
including health care, youth programs, foster parent and adoption agencies, 
schools, and substance abuse programs — filed approximately 167,000 criminal 
record requests in fiscal year 1988. This was an increase of 29 and 57 percent 
over fiscal years 1987 and 1986 respectively. Requests for the first three 
months of fiscal year 1989 represented an almost 21 percent rise over the same 
period in 1988; an increase attributed in part to the prevalence of drug and 
child abuse offenses and the risk of liability (SEARCH Group, Inc., March 
1990). 

As indicated in Figure B, Hayes and her colleagues (1990) found that 
27 of the states (53 percent) conduct criminal record checks on family day 
care providers; 29 states and the District of Columbia (59 percent) conduct 
criminal record checks on center care providers; and about half of the states 
(49 percent) conduct criminal record checks for both family day care and 
center care providers. (Figure B also exhibits the number of states conducting 
child abuse registry checks for family and center day care workers. Screening 
against child abuse registry checks is discussed in Section VI.) 



27 



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Figure B: State Regulations of Family & Center Day Care, Caregiver Screening 



33 




5M 




























2B 


- 






53* 




26 








49X 












23 










20 










IB 
















1 
li 










16 


1 








m 




















12 

TO 

9 

B 

< 


m. 




S, 




w, 




2 






n 









Cantor Day Car* Paml ly Day Card Farm ly & C«nt«r Cara 

Crim record etc RO^ Child abuse reo ct V//7A Both, chects 



Source: Hayes cl al.. 1990 



In the public school system, Titus and DeFrances (1989) surveyed over 
1,100 public schools and found that 58 percent conducted criminal record 
checks, most commonly by name and social security number; fingerprints and 
aliases were used half as often. Local, state and federal law enforcement were 
the most common sources of information, while courts and sex offender or 
child abuse registries were seldom used. The authors also found that of those 
schools conducting criminal record checks, all do checks on applicants for 
permanent employment; most on temporary, part-time and/or substitutes; and 
less than half on volunteers or employees of subcontractors. And in a study of 
screening procedures used by Big Brothers/Big Sisters of America, Carrilio 
(1987) found that 79 percent of the agencies use local arrest and conviction 
records; 67 percent use state records; and 25 percent request federal records. 



28 



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E. Criminal History Information and Data Quality Issues 
Cause for Concern 



Completeness of Records and Disposition Reporting 

A fundamental and often-cited deficiency of criminal history records 
concerns disposition data. Two-thirds of the states report that they sometimes 
receive dispositions that can't be linked to arrest information; on average, 
about 18 percent of dispositions can't be linked to existing records. In 
addition, about 30 percent of the states have backlogs in entering dispositions 
into the database (BJS, March 1991). As of mid-June 1991, the FBI had its 
own backlog of over 3 million criminal records waiting to be updated and 
500,000 new files that had yet to be entered - a problem requiring $12 million 
to fix (BJS, January 1992). 

At a 1991 conference to discuss improving the quality of criminal 
history records, then-Attorney General Thornburgh chided the incompleteness 
of criminal history records, noting that there is only a two in three chance of 
seeing any criminal record when a name (of someone who does in fact have a 
criminal record) is entered. This is due in part to the fact that over 8 million 
records are not computerized and 40 to 60 percent of the over 24 million 
names in the FBI files do not have a disposition (BJS, January 1992). 

Differences exist between states not only in the scope of disposition 
reporting to criminal history repositories, but also on whether it is mandated. 
A SEARCH Group report on the interstate exchange of criminal history 
records concluded that there are disadvantages to relying on the laws and 
policy of either the requesting or providing state agency and urged the 
development of national standards agreed to by all participating states 
(SEARCH Group, May 1981). According to a January 1992 Bureau of Justice 
Statistics report: 



32 states and the District of Columbia require that decisions not to 

prosecute be reported to the repository; 

41 states mandate reporting of felony trial court dispositions; 

36 states require reporting of state prison admission and release 

information on felonies; 

23 states require reporting of local correctional facilities admission and 

release information on felonies; 

30 states require parole data and 30 require probation data to be 

reported; and 

Only 24 states require that the arresting agency report a decision not 

to charge the person. 



143 



The Bureau of Justice Statistics, in its 1985 report on the data quality 
of criminal history records, found that "in more than half of the states, 
repositories do not have authority to compel agencies to report arrests or 
dispositions" (BJS, October 1985b). Although 19 states legally require 
fingerprints of those brought up on felony charges be submitted to the 
repository, 10 states report that fingerprints are actually obtained and 
submitted in 10 percent or less of the applicable cases; the remaining 9 states 
estimate that about half of cases are submitted (BJS, March 1991). Most 
studies on disposition reporting deal with state systems exclusively, leaving 
little knowledge about reporting rates in local criminal history record systems 
(op cit). However, a 1982 Office of Technology Assessment study did find 
that when FBI files were compared with local source data, 20 percent did not 
agree. 

Timeliness of Criminal History Information - Both in Receiving Records and 
Processing Requests 

Many noncriminal justice agencies conducting criminal record checks 
complain about the lengthy turnaround-time it takes to receive results. State 
government agencies requesting information from the FBI reported an 
estimated processing time of 6 to 8 weeks. Turnaround-time for state 
fingerprint checks ranged from several days to 6 weeks, while most state name 
checks took no more than 15 days. Youth-serving agencies, however, 
reported record processing delays "of many months." Limited funding, lack 
of automation, and non-readability of fingerprints were all cited as contributing 
to delays (Davidson et al., 1991). Timeliness is especially problematic for 
child- and youth-serving organizations given the high turnover rate (sometimes 
reaching 50 percent) among some child care workers. This constant need for 
replacement staff makes a wait of several weeks, let alone several months, 
quite burdensome. And provisional hiring, i.e. permitting an 
employee/volunteer to work pending the check seems to at least partially 
defeat the purpose of the checks - to prevent access to children by potentially 
abusive persons. 

On the provider end, timeliness is also a problem for state criminal 
history repositories both in terms of receiving and entering information from 
various law enforcement sources. According to a January 1992 Bureau of 
Justice Statistics report, 9 states report backlogs in entering arrests and 13 
states report backlogs for entering dispositions into the database. The time 
lapse between arrest and receipt of arrest data by repository ranges from 1 to 
42 days; disposition reporting ranges from 1 day to 1 year (for one state); and 
correctional facility admission information is reported in 1 to 90 days. 
Additional BJS findings (March 1991) reveal that the average number of days 
between receipt of information and entry into the master name index and the 
criminal history database is 29 and the average number of days from final trial 



30 



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court disposition and entry into the criminal history database is 79 (ranging 
from less than 1 day to 952 days). 

Processing Fees 

At the writing of this report, the FBI charged employers and licensing 
agencies $23.00 to conduct a national fingerprint check; $21.00 of this covers 
the FBI's outlays and $2.00 goes to the states to defray handling costs. 
Federal agencies, such as the Department of Defense and the Office of 
Personnel Management, enjoy a reduced rate of $17.00. Individuals wishing 
to get a copy of their own criminal history records under the Freedom of 
Information Act also pay $17.00, although the FBI strongly asserts that 
records obtained under the FOIA cannot be used for employment purposes. 

Almost three-fourths of the states and the District of Columbia will do 
a criminal background check by name, charging anywhere from no fee to 
$25.00; fees for the 13 states that do a fingerprint check range from $3.00 to 
$27.00. New York will not process a criminal background check unless it has 
an authorized agreement with the requesting agency. 12 

Accuracy of Criminal History Information 

Complaints regarding completeness and timeliness are joined by 
concerns about the accuracy of individual criminal histories. A national study 
of police arrest statistics from 1980 to 1982 showed that "arrest statistics are 
not comparable across police departments, because there is widespread 
violation of the rules and procedures established by the FBI for compiling 
arrest statistics" {Police Foundation Reports, 1984). This becomes 
problematic since, as Gordon (1986-87) claims, inaccurate criminal records 
have more impact because they now "travel farther, are seen by more people, 
are copied and recopied, and have more uses." 

According to the BJS November 1988 report, Public Access to Criminal 
History Record Information, release of information may be unfairly damaging 
to an applicant in circumstances where a record: (1) relates to a different 
person; (2) is inaccurate or incomplete; (3) is accurate and complete, but it 
relates to a conviction or arrest which is unconstitutional or otherwise 
improper; and (4) is accurate and complete, but "old" and no longer reflective 
of person's character. These circumstances may be more prevalent than 
anticipated: A national survey revealed that about 20 to 35 percent of criminal 
history records at the state and local levels are materially inaccurate or 
ambiguous (BJS, October 1985b). And Gordon (1986-87) states that each day 
at least 12,000 inaccurate or invalid reports on wanted persons alone are sent 
by state and local law enforcement agencies to NCIC; a mistake often 
requiring a court order to rectify. 



31 



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Barriers to Obtaining Quality Information 

Part of the problem in obtaining quality information has been a lack of 
recognition of the importance of criminal history data. Most criminal justice 
agencies, including the FBI, "generally have viewed their primary information 
mission as . . . policing the information, and not as providing information to 
people in order to drive decisionmaking" (BJS, January 1992). Obstacles to 
receiving suitable information identified at the state level include: poor internal 
written procedures, poor validation procedures, failure to submit 
arrest/fingerprint cards and/or dispositions, poor documentation of original 
reports, and poor hit confirmation procedures (House Subcommittee on Civil 
and Constitutional Rights, July 1986). 

The push for improved data quality is not a new concept; as of 1986, 
49 states had adopted data quality legislation. Despite these efforts, 
"significant and unacceptable data quality problems remain" at federal, state 
and local levels and improvements have been "uneven and ultimately 
unacceptable" (ibid). The January 1992 BJS report, National Conference on 
Improving the Quality of Criminal History Records, identified the following 
factors as inhibiting satisfactory data quality: 

(1) absence of clear correctional philosophy, which leads to questions of what 
data to collect, how it should be used and what level of quality is acceptable; 

(2) proliferation of correctional programs which result in information being left 
behind when an offender moves from one program to another; 

(3) lack of uniform definitions in correctional terminology from one jurisdiction 
to another; 

(4) failure to understand information systems in the development of effective 
crime control; and 

(5) increased and perhaps excessive demand of accountability, leading to a 
reliance on quantitative versus more appropriate qualitative goals. 

Strategies for Improving Data Quality 

As discussed, the fact that criminal records are being made increasingly 
available to noncriminal justice agencies for licensing and employment 
purposes raises serious concerns about quality of the information provided. 
Compounding the problem is the fact that our criminal justice system is 
incredibly fragmented; there are over 16,000 city, county and state law 
enforcement agencies (Nemecek, 1990). "The mobility of our society, the 
maze of procedures and the sheer number of offices involved have made a 
systematic method of access nearly impossible" (Long, 1992). This 
fragmentation of the criminal justice system affects not only basic operations, 
but the willingness and ability to transfer information. 



32 



146 

The Bureau of Justice Statistics (October 1985b) outlined several broad 
improvement strategies, the most important of which included prioritization of 
the data quality issue; improving relationships between repositories and the 
courts; increasing automation; and obtaining adequate funding levels. Further, 
BJS recommended examining the issues from the user's perspective, not just 
the data manager's. An April 1989 follow-up report specified additional 
improvement measures: 

• Conduct periodic baseline audits to evaluate data quality procedures and assess 
completeness and accuracy of records. 

• Develop uniform documents, forms, offense codes and reporting procedures to 
improve communication and cooperation. 

• Develop a single, system-wide tracking/case numbering system to link 
reported data to the appropriate individual and case cycle; this would include 
ability to track by specific charges (e.g., child abuse). 

• Institute laws requiring mandatory reporting by all states to central 
repositories and specify penalties for noncompliance. 

• Provide standardized training, both at entry level and on continuing basis, for 
data entry and documenting personnel. 

In response to the uneasiness over less-than-optimal data quality, the 
Crime Control Act of 1990 required states to set aside at least 5 percent of 
their block grant funds for the improvement of criminal justice records (e.g., 
completion of records, full automation, reporting to the FBI). In addition, the 
Bureau of Justice Statistics began administering a 3-year, $27 million Criminal 
History Record Improvement Program (CHRI) to increase states' disposition 
reporting and flagging of felony records in the database (BJS, January 1992). 
As of February 14, 1992, over $16.2 million CHRI funds had been awarded 
for state activities that include: 

► Alaska processing a backlog of 60,000 criminal history records 
*■ Arizona clearing a backlog of 95,000 dispositions 

► Arkansas processing its backlog of over 70,000 arrests made within the last 5 
years that do not contain dispositions 

► Georgia eliminating a backlog of 348.000 fingerprint cards and disposition 
reports 

► Maryland developing a "live scan" booking system to help with arrest 
processing 

► Oregon reducing a disposition backlog of 32,000 

*■ Tennessee automating to clear a 5-year backlog of dispositions 
*■ Wyoming automating 7,800 manual records 



33 



147 



Point-of-Sale Systems for Licensed Gun Dealers: A Useful Model? 

Improving the quality of criminal history information and developing 
more effective computer systems is important to many states, if not for the 
purpose of screening out child offenders, then for attaining greater gun control 
and reducing violent crime. Several states have instituted strategies to achieve 
the latter. Over 40 percent of the states (20) currently conduct criminal record 
checks of their state repositories in connection with the sale of firearms; two 
of these states also check the FBI files and 10 also screen against the III (BJS, 
March 1991). These point-of-sale systems may serve as models in developing 
a type of "point-of-employment" system that child- and youth-serving 
organizations can access. 

The Bureau of Justice, Statistics (January 1992) explains that in 
Delaware, Florida and Virginia, point-of-sale systems allow licensed gun 
dealers to contact the state police through a toll-free number to instantaneously 
review a potential buyer's criminal history records and obtain approval or 
rejection for the gun sale. All three states offer this information free of charge 
to licensed dealers, (Delaware estimates it would have to charge only $8.00 
per transaction to break even), and the average time for confirmation is less 
than 10 minutes. During Delaware's first 5 months of the program, over 
4,680 calls were received from 350 gun dealers; about 9 percent of sale 
inquiries were disapproved. During just 4 months in 1991, Florida received 
approximately 74,000 inquiries and denied about 4 percent. (For records 
lacking a disposition, Florida has 24 working hours to obtain a disposition or 
the sale is automatically approved.) In the first 18 months of Virginia's 
program, which serves over 4,000 firearms dealers, some 90,655 transactions 
were processed, about 2 percent of which were rejected. Virginia's system 
does both state and national checks for the dealers and it's biggest reported 
problem in implementing the system has been accessing out-of-state records 
and interpreting the different methods of reporting and disposition information. 
Virginia's first-year costs for the program were just over $310,000. The fact 
that licensed gun dealers may enjoy a somewhat higher "hit rate" for point-of- 
sale inquiries than child- and youth-serving organizations which conduct 
criminal record checks may be due in part to differences between child care 
and youth-service workers and gun-buying clientele. 

F. Disadvantages and Criticisms of Criminal Record Checks 

Given the continued fervor in trying to extend the use of criminal 
record checks for screening purposes, the U.S. Advisory Board on Child 
Abuse and Neglect voiced concern over whether a major federal initiative 
might result "in new layers of bureaucracy and new reams of paperwork" 
rather than increase the level of child protection (Select Committee on 
Children, Youth and Families, September 1991). Others have expressed 



34 



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complaints about the absence of uniform regulations and centralization of 
control regarding criminal records, which could wreak havoc for organizations 
requesting out-of-state records. 

In addition to the managerial headaches that can accompany criminal 
background checks, adversaries fear that such screening may foster 
organizational complacency and overconfidence in the selection of employees 
and volunteers. Critics worry that using criminal record checks may lead to a 
false sense of security and organizations will be less apt to subject applicants 
to supplemental, and perhaps more elucidating screening procedures. If 
criminal record checks identify offenders at all, it is likely they will capture 
only one type of offender. This is problematic because, as discussed in the 
beginning of this report, the offender population is a diverse one, complete 
with unique offender subgroups exhibiting different character traits. 

Add to all of this, distress over the amount of financial and human 
resources needed to conduct criminal record checks, and what emerges is a 
difficult struggle between the need to protect children and the desire to keep an 
organization functional and within budgetary constraints. 

Administrative and Procedural Problems 

Conducting criminal record checks has been known to consume 
precious personnel time and sometimes throws a kink into otherwise routine 
staff selection and hiring procedures. While one-third of public schools 
reported experiencing no problems in using criminal record checks for 
prospective workers some difficulties did arise, including hiring delays and 
unsuitable applicants not identified (see Figure C). Other comments by public 
school survey respondents included a preference for dialogue over use of 
mailed written forms to facilitate more open-ended, exploratory discussions 
about an applicant's performance, character traits and suitability. In 
particular, the schools liked indirect questions about why the applicant left 
his/her last job rather than direct questions about criminal activity and related 
behavior. Ditter (1986) also noted that in screening for child abuse among 
staff, many organizations opt for more subtle, less offensive approaches. 

Fairfax County and Arlington school officials uttered dissatisfaction 
with federal checks because they applied to a limited number of offenses and 
missed records of fraud, drug charges or illegal gun possession (Fairfax 
Journal, January 8, 1990). More recently, Fairfax County schools were 
forced to relax their fingerprint requirements for substitute teachers due to the 
10- week turnaround time and high turnover rate in the substitute teacher pool 
(The Washington Post, October 22, 1992). Louisiana schools and day care 
centers have also complained that the police are "too slow in processing 
criminal history reports," taking up to 18 months to complete the reports and 



35 



149 



thereby providing a window of opportunity for individuals to gain access to 
children. "The bottom line is that offenders are getting a 15- to 18-month shot 
at somebody's child," according to the state police's supervisor of criminal and 
traffic records. The main problem, police say, is outdated processing 
equipment (Times -Picayune, March 11, 1991). 

Figure C: Problems Resulting From Criminal Record Checks 
As Reported By Public Schools 




No proo lams 



info not adoo/ c f m« t y Additional costs 

Creates' delays Unsuitable aooiicants not iaa 



Source: Titus and DeFranccs, 1989 

Even London's Department of Social Services has been plagu°d by 
administrative problems in conducting criminal record checks. In light of 
growing public concern about the risks to children of abuse from employees, 
London introduced a criminal background check system in 1986. However, 
disputes with the police over who would be liable if the information provided 
was incorrect forced some authorities to abandon the practice. Due to the 
large number of employees involved, including minicab drivers who transport 
children, the system became bogged down and delays of up to eight weeks 
forced job applicants to look elsewhere for employment (New Society, July 31, 
1987). 

One additional administrative glitch is the need for staff trained in how 
to actually fingerprint an applicant. This may seem like a minor detail, but 
sending a set of illegible fingerprints to the FBI or state criminal history 



36 



150 



repository and having to repeat the process wastes valuable money and time. 
Illinois' licensing agency for child-related activities reported that in 1990, 
almost half of the fingerprints obtained for screening were unclassifiable, some 
of which could not be read and had to be resubmitted (Davidson et al., 1991). 

Need for Interagency Coordination 

Lack of coordination and cooperation among law enforcement, state 
regulatory/ licensing bodies and community agencies further complicates 
matters. For example, when a child fatality is subsequently investigated by 
police, child protective services may not be involved; therefore, if a person 
kills a child under circumstances that do not result in prosecution or 
conviction, the state central child abuse registry does not reflect the matter. 

This dearth of communication is not limited to child welfare services: 
an analysis of teacher revocation notices received from 49 states by the Florida 
Department of Education for a five-year period found that Florida officials 
were not informed about as many as 35 percent of the certificates revoked by 
other states (The News Chief, September 25, 1984). Factors hindering 
interagency cooperation include the large number of public and private 
agencies involved; diversity in licensing and regulatory standards; the complex 
nature of extrafamilial abuse; and the absence of a uniform definition and 
consensus on what constitutes abuse in out-of-home settings (Nunno and Motz, 
1988). 

Financial Concerns 

In these tight economic times, it is not surprising that a significant 
amount of scrutiny would center on the cost-effectiveness and cost-benefit of 
criminal record checks. In Pennsylvania it was determined that the state 
would have to spend $6 million on background checks, pursuant to the 
DeConcini-Specter Amendment, to gain an additional training allocation of 
$633,000 (Special Reports, April 14, 1986). The U.S. Department of Health 
and Human Services (1985) calculated that to screen 1 million employees as 
per the amendment at $25.00 for both state and federal fingerprint checks (the 
going price almost a decade ago) would cost $25 million. DHHS assumed that 
if 5 percent turned up with a criminal record (50,000) and 2 percent of those 
were child sexual abusers (1,000), then the cost of finding these 1,000 
potential sexual abusers amounted to $250,000 per abuser. This lofty price tag 
led Finkelhor and Williams (1988) to conclude that police records checks "are 
expensive and inefficient prevention techniques, identifying only a small 
fraction of potential abusers at prohibitive cost." 

The Fairfax County School system spent an estimated $140,000 in 1990 
to fingerprint more than 4,000 job applicants ($35.00 per applicant.) Using an 



37 



151 



estimated hit rate of 5 percent, 200 potentially abusive individuals would be 
screened out to the tune of $700.00 per offender. School officials feel that 
state and federal checks are worth the money and necessary since so many 
applicants are new residents coming from out-of-state {Fairfax Journal, 
January 8, 1990). Hawaii's Department of Education estimated that while 
state background checks are free, conducting FBI fingerprint checks on an 
estimated 6,000 new public school employees would run them around 
$138,000 a year, not including administrative costs. The state's education 
department employs approximately 30,000 full- and part-timers, a potential 
$690,000 expense {Honolulu Advertiser, November 13, 1991). 

In examining the issue of cost in greater detail, it is apparent that all of 
the information on cost has not yet been fully considered. For example, using 
the DHHS scenario, another way to look at the total cost of criminal history 
record checks is to consider the cost per perpetrator identified. If we use very 
liberal estimates and assume that the initial 50,000 who are identified have 
some type of criminal record (not solely a sex offense) that makes them 
unsuitable for the position, then the cost per offender drops dramatically to 
$500.00. Still another option might be to ascertain how much criminal record 
checks cost from a "per child saved from abuse" standpoint. If we speculate 
that each offender may abuse from 7 to 100 children (please refer to page 11), 
then the cost for each child saved from abuse from the cohort of offenders 
identified becomes just over $70.00 or as little as $5.00. But this assumes that 
preventing one offender from being hired for that one job will stop him or her 
from abusing the children in other settings. 

To carry this thought further, one would have to consider how costs 
will accumulate over time; i.e., this cost estimate is really a "per child saved 
from abuse" by only one offender in a particular employment/volunteer 
setting. A child may be exposed to a number of people at any given point in 
time (e.g., teacher, coach, priest, doctor and others), and during childhood the 
number of adult-child contacts is virtually endless. To calculate true costs, 
one would have io add up the expense of conducting criminal history record 
checks on all of the individuals that may present some risk to a child (e.g., 
school administrators, teachers and support staff, day care providers and their 
adult household family members who may help out, community recreational 
center employees and volunteers, youth development workers, health care 
direct service and support staff). 

Table 4 provides a financial profile of the estimated costs associated 
with conducting criminal record checks on public school employees in 12 
states. These examples, while only representing one of the many settings in 
which adults come into contact with children and youth, are offered in part 
because schools are a place where exposure is greatest. In addition, estimates 
on the number of public school employees (instructional and non-instructional 



38 



152 



staff) are readily available, whereas a breakdown on the number of 
recreational and youth development workers, as well as other professions, is 
not. Readers should note that "cost per child saved" (as portrayed in the 
chart) only takes into account the cost of saving a child from abuse by one 
public school employee while that child is in the school setting. In addition, 
the cost of federal and state checks includes the FBI's $23.00 charge and a 
given state's own fee, but does not include other administrative costs which 
may be prohibitively expensive for some agencies. (Administrative costs are 
not included because no reliable estimates were gleaned from the literature.) 



39 



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154 



Contentions that Criminal Record Checks are Unfair and an Invasion of 
Privacy 

Criticism of criminal background checks, however, extends beyond the 
financial, administrative and effectiveness arenas to encompass issues of 
privacy and fairness. While some individuals hold that people should be given 
a second chance and an opportunity to start anew, others argue that the 
community has the right to protect itself; not only must individuals be held 
accountable for their behavior, but organizations must be held responsible for 
their employees' character. 

Civil and constitutional rights advocates reject the idea that child- and 
youth-serving organizations should have increased access to individuals' 
criminal history records. They object, in part, on the grounds that employers 
do not know how to properly decipher and use criminal history information. 
This alleged inability to translate criminal records, advocates argue, paves the 
way for employer misinterpretation and discrimination. Secondly, opponents 
of criminal background checks argue that increased access will have an 
adverse effect on the poor, blacks and other minorities because such groups 
account for a disproportionate percentage of criminal offenders. Testimony 
before the House Judiciary Committee indicated that blacks are arrested four 
times more frequently than whites, even though only half of those arrests ever 
end in conviction. Additional testimony revealed that one-third of the FBI's 
criminal history files are on blacks and the percentage of blacks with arrest 
records ranges from 30 percent nationwide to over 50 percent in certain cities 
such as Philadelphia (Subcommittee on Civil and Constitutional Rights, 
October 1987). 

In sum, it has been argued that police checks are not effective as a 
screening method because they are incomplete and do not provide enough 
detail for certain offenses; contain no records on juvenile offenders unless tried 
as an adult; are expensive and time consuming; have an adverse effect on 
minorities; are invasive and discourage the recruitment of quality 
employees/volunteers; and can increase an agency's liability if the agency fails 
to use the police check capability. These arguments need to be weighed and, 
within the privacy and due process parameters set by the Constitution, 
balanced against the pivotal consequences of having repeat offenders slip 
through the cracks and harm more children. The following section reviews the 
legal literature discussing how federal and state law have resolved some of 
these issues. 



41 



155 



G. Legal Issues Arising from the Use of Criminal History 
Record Checks 

The literature reveals that using criminal background checks to screen 
out unsuitable employees and volunteers has raised a number of legal issues. 
Specifically, the literature discusses: (1) whether the disclosure of criminal 
history records, including arrest and/or conviction information, implicates 
constitutional privacy or due process interests; (2) whether the disclosure or 
use of criminal records in screening persons who work with children violates 
statutory or tort-based privacy considerations; (3) whether the use of criminal 
records as a screening tool violates principles of fair employment practices, 
including those discrimination prohibitions set forth in Title VII of the 1964 
Civil Rights Act; (4) whether an employer can be held liable for harm caused 
by an employee or volunteer with a criminal record; and (5) whether a state 
agency or employer can be held liable for harm caused by the use of 
inaccurate criminal history information. 13 

Constitutional Issues: Privacy and Due Process Considerations 

The constitutional challenges regarding disclosure of criminal 
background information have focused on privacy interests and due process of 
the law. The 1976 Supreme Court case of Paul v. Davis, 424 U.S. 693 
(1976) and its progeny, however, effectively eliminated most challenges based 
on federal constitutional privacy interests. 14 In Paul, police officials 
circulated a flier to local merchants, entitled "ACTIVE SHOPLIFTERS," 
which included the plaintiffs picture. The plaintiff had been arrested for 
shoplifting some 18 months earlier and never convicted, although the charges 
were still pending. As Davidson and his colleagues (1991) point out, the Paul 
court held that this action was not a violation of the plaintiffs constitutional 
right to privacy and noted that the privacy claim was "far afield" from the line 
of past Supreme Court privacy decisions involving "marriage, procreation, 
contraception, family relationships and child rearing and education." And 
several other authors have suggested that the "public record" nature of the 
arrest information in Paul was a critical factor limiting the application of any 
constitutional right to privacy. 15 

Subsequent lower court decisions have generally given short shrift to 
constitutional challenges to disclosure of criminal convictions and pending 
criminal charges based on the right of privacy. Some cases, however, suggest 
that privacy considerations may still be applicable with respect to acquittals, 
records of old arrests no longer pending, records of arrests made without 
probable cause, or records otherwise defective (BJS, November 1988a). Thus, 
at least with respect to disclosure of conviction and current, pending arrest 
information, the legal literature indicates that a federal constitutional right to 
privacy is not implicated. Protection of privacy interests has largely been 



42 



156 

left to those state constitutions that provide a right to privacy, the common law 
action of invasion of privacy, and statutory limitations on criminal records 
based on public policy concerns for privacy. 16 

Several state constitutions, including California, expressly provide a 
right to privacy. The extent to which the state constitutions explicitly or 
implicitly protect against the disclosure of criminal history information in 
screening persons who work with children is unclear from the literature 
reviewed. In Florida, persons named in public records (such as criminal arrest 
and conviction records) have not been found to have a state right to privacy 
that is violated by the release of public records (Rivas, 1992). 

Due process considerations are at issue in the use of criminal 
background checks because a person's interest in earning a living has been 
included in the concept of "liberty" under the Constitution's due process 
clause. However, Davidson et al. (1991) note that in DeVeau v. Braisted, 363 
U.S. 144 (1960), the court held that employment and licensing restrictions do 
not violate the due process clause if they are "reasonable means for achieving 
a legitimate state aim." Since protecting children from abuse outside the home 
has been found to be a legitimate state aim, 17 the inquiry is whether the use 
of criminal checks is a reasonable means to protect children. The legal 
literature analyzing this issue is limited. It is clear, however, that 
reasonableness under the due process clause requires the inclusion of certain 
procedural protections. The literature describes some of the procedural 
safeguards that have been proposed in utilizing criminal record checks. 

In a memorandum regarding the DeConcini-Specter Amendment, Sen. 
Arlen Specter recommended that individuals disqualified from employment as 
a result of their criminal history be notified of the reasons for the 
disqualification (including information on the procedures to challenge or 
correct inaccurate information) and given an opportunity to be heard before the 
state agency (Beaty and Woolley, 1985). 

The SEARCH Group's 1988 report Standards for the Security and 
Privacy of Criminal History Record Information, which sets forth national 
standards for handling criminal justice information, is also instructive. 
Standard 13.5 recommends that most criminal history record information be 
publicly available, except for certain nonconviction information, (including 
arrests over one year with no charges actively pending, nolle prosses, and 
acquittals and dismissals), which is to be disclosed for "private noncriminal 
justice purposes as authorized by state statute." Further, this nonconviction 
information is to be available under a written agreement ensuring that "the 
information is used only for the purpose for which it was disseminated, is not 
redisseminated, and is maintained in a manner to assure the security of the 
information and the protection of the privacy interests of the record subjects." 



43 



157 



Statutory and Common Law Privacy Claims 

Public policy concerns with privacy (and due process) form the basis 
for statutory provisions governing the maintenance and dissemination of 
criminal record information. A number of publications by the Bureau of 
Justice Statistics and the SEARCH Group, Inc. discuss the statutory and 
regulatory provisions governing criminal records. 18 These provisions include 
limitations on access to criminal record information. As previously noted, 
under federal law a private entity seeking access to FBI records for 
employment purposes must be authorized to do so by state law and through a 
state intermediary. In addition, the Privacy Act of 1974, 5 U.S.C. §552a, 
provides a number of safeguards designed to protect privacy interests. The 
Act includes procedures for individuals to access and amend federal agency 
files with information about themselves and permits certain civil suits if the 
federal agency does not correct inaccurate data (Firehock, 1992). However, 
the Act's authorization for law enforcement agencies to exempt themselves 
from certain duties under the Act has limited its reach. The exemption for law 
enforcement-related records has been interpreted to include recompilations of 
such records for non-law enforcement purposes (ibid). Thus, the Act may not 
be applicable to criminal records used for the screening of persons working 
with children. 

The common law tort action, invasion of privacy, may also be the basis 
for liability resulting from the use of inaccurate data. As initially analyzed by 
William Prosser (1960), invasion of privacy includes four distinct types of 
torts, including "public disclosure of private facts." For the most part, the 
cases involving the release of criminal records have focused on this type of 
tort. Drawing on the analysis in Paul v. Davis regarding the constitutionally- 
based right of privacy, some courts have found that the tort of invasion of 
privacy does not prevent the disclosure of criminal justice records because 
arrests and convictions are public facts. Other courts have balanced the 
individual's privacy interests against the public's interest in having the records 
disclosed (SEARCH Group, 1984; Turkington, 1990). 

Employment Law Issues 

Employers in a number of business areas are increasingly using detailed 
computer databases to obtain information about prospective employees' 
criminal, credit or workers compensation histories. Some individuals have 
claimed that the practice of using criminal history information is 
discriminatory under Title VII of the Civil Rights Act of 1964, and have 
challenged hiring and firing decisions based on criminal records because they 
have a disproportionate impact on the employment opportunities of minorities. 
In certain employment contexts not involving children, these challenges have 
been successful. (Frank, 1992; Frierson, 1988a) However, if an employer 



44 



158 



can show that criminal background checks are a "business necessity," checking 
arrest records or other criminal information will not be considered unlawful 
discrimination within the meaning of Title VII. In deciding whether a practice 
is a business necessity, courts make a determination as to whether the practice 
is "related to job performance" [Davidson et al., 1991 citing Griggs v. Duke 
Power Co., 401 U.S. 424 (1971)]. 

The literature to date does not specify whether any court has expressly 
ruled that the use of criminal information to screen people who work with 
children does not violate Title VII. 19 However, as the ABA Center on 
Children and the Law has noted, "[i]n light of the recent increase in out-of- 
home child abuse, child-serving organizations ... are very likely to have what 
courts would consider a 'business necessity' to check arrest records of 
prospective and current employees" (Davidson et al., 1991). Others argue that 
only conviction information should be used, asserting that the use of arrests 
without convictions violates Title VII. 20 

Moreover, in deciding the effect of an existing conviction (or arrest, if 
such information is to be used), courts have determined that "any test used [to 
hire or retain employees] must measure the person for the job and not the 
person in the abstract." Thus, a criminal record generally may not absolutely 
bar employment, but may be a consideration in the decision to hire or retain 
an employee (Davidson et al., 1991). The practice of rejecting all those with 
criminal convictions was struck down in a case that did not involve care, 
service or treatment of children, with the court noting that such practices will 
not be upheld unless there is a specific business or statutory' justification 
(Schreiber, 1980). Again, whether child-serving organizations have a business 
justification for rejecting an applicant simply based on a criminal record, is 
unclear from the legal literature reviewed. 

The states also have equal employment opportunity statutes similar to 
the federal Title VII. Consequently, a prospective employee may challenge a 
hiring decision based on state rather than federal fair employment law 
(Murray, 1986). Further, in some states, requesting arrest information on a 
job application generally violates the state equal employment opportunity laws, 
although positions involving work with children may be excepted (Hahn, 
1991). 

Negligent Hiring and Negligent Supervision 

Analysis of negligent hiring and negligent supervision historically 
stemmed from a "respondeat superior" theory under which acts falling outside 
the scope of employment do not subject an employer to liability. Since 
criminal acts tend to fall outside the scope of employment, employers 



45 



159 



generally have not been held liable for child abuse perpetrated by their 
employees under a respondeat superior theory. 

In recent years, however, challenges utilizing "negligent hire" or 
"negligent supervision" theories have met with some success. An employer 
customarily has a duty to use "reasonable care" in hiring and retaining 
employees who are competent and fit for their positions. In deciding whether 
the exercise of reasonable care in hiring may include reviewing a prospective 
hire's criminal background, a court will look at all the circumstances 
surrounding the hiring, including whether an employee is being hired for a 
sensitive occupation (Davidson et al., 1991). 

The legal literature does not indicate whether the courts have expressly 
decided whether the sensitive nature of work conducted by child care and 
youth-serving organizations requires criminal record checks of employees. 
Liability is often predicated on the broader finding that an employer hired a 
person without an adequate background investigation which would have 
indicated that the plaintiff child was at risk (Bates, July 1990). Davidson and 
colleagues (1991) discuss Infant C. v. Boy Scouts of America, 391 S.E. 2d 322 
(Va. 1990), a case in which the local Boy Scouts branch was found liable 
when a volunteer scoutmaster with a criminal record for sexually assaulting 
scouts in another state allegedly molested the child plaintiff. The court 
dismissed the claims against the national Boy Scouts organization based on a 
finding that the national organization did not participate in selecting or 
retaining the scoutmaster. 

Under a "negligent supervision" theory, an employer may be liable for 
harm that could have been prevented by proper supervision of the employee or 
volunteer. Fossey (1986) refers to one case, Collins v. School Board of 
Broward County, All So. 2d 560 (Fla. Ct. App. 1985), in which the court 
held that a school district could be liable for a sexual assault on a student in an 
improperly supervised shop class. Although that particular case involved a 
student assaulting a student, the court's reasoning — that the assault could have 
been prevented by proper supervision — is equally applicable to employee or 
volunteer assaults. However, the fact that an abusive act takes place while a 
child is in an employer's care, does not necessarily result in liability. In Peck 
v. Siau, 827 P.2d 1108 (Wash. Ct. App. 1992), a high school librarian and a 
student had sexual contact and the school district was sued based on negligent 
hiring and supervision. The court did not find the school district liable, noting 
the absence of actual or imputed knowledge that the librarian would endanger 
students. And the teacher to whom allegations of the librarian's misconduct 
were made was also not found liable since the teacher had no supervisory 
responsibilities (ABA Juvenile & Child Welfare Law Reporter, 1992, 11:84). 



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Lawsuits have also been brought in federal court by persons seeking 
damages against state officials for harms to children under a variety of 
circumstances (Guggenheim, 1991 21 ). The Civil Rights Act, 42 U.S.C. 
section 1983 permits suits against officials acting under color of state law who 
have deprived persons of federal rights. The circumstances under which 
section 1983 can successfully be used to find liability for inadequate screening 
in the hiring or supervision of an abusive employee or volunteer is unclear 
from the literature. In Daniels v. Williams, 474 U.S. 327 (1986), and 
Davidson v. Cannon, 474 U.S. 344 (1986), the Supreme Court held that 
negligence cannot be the basis for liability under the Civil Rights Act. 
However, since those cases involved single, random instances of negligence, to 
the extent that the failure to adequately provide supervision constitutes 
"deliberate indifference" rather than mere negligence, there may be grounds 
for liability (Soler et al., 1991). 

The Use of Inaccurate Data: Defamation and Negligence Claims 

The extent to which the state or private employers can be held liable 
for the use of inaccurate data rests on the application of several ton law 
theories, primarily defamation and negligence. An April 1984 report by the 
SEARCH Group, Liability for Mishandling Criminal Records, contains a 
useful discussion of the application of these theories to the use of inaccurate 
criminal records, particularly with respect to the liability of state agencies. 22 
Defamation, which includes the common law actions of libel (written or 
printed statements) and slander (oral statements), can arise when inaccurate 
criminal records are disseminated without having made reasonable efforts to 
ensure accuracy. Generally, plaintiffs suing criminal justice agency officials 
on this theory will be hindered by the necessity of proving that the official 
releasing the information was motivated by ill will or lacked reasonable 
grounds for believing that the information was accurate. 

A negligence theory is less onerous for plaintiffs. Liability can result 
from the "dissemination of erroneous information, failing to exercise due care 
in employing and supervising record personnel or possibly from merely 
maintaining inaccurate records. Numerous courts have said that criminal 
justice agencies do have a duty to exercise reasonable care to insure that their 
records are complete and accurate and to prevent dissemination of inaccurate 
records" (SEARCH Group, April 1984). 

H. Unanswered Questions, Unresolved Issues 

While deliberating the advantages and disadvantages of criminal record 
checks, earnest consideration must be given to some principal issues which are 
still in dispute. Resolving the issues outlined below is paramount to 
conducting criminal record checks in a productive and equitable manner: 



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What information should be kept in criminal record repositories and 
how much of it should be disseminated? 

What categories and types of offenses are to be used in deciding 
employment or volunteer placement decisions; which of these will be 
mandatory disqualifying criteria, which will be discretionary? 

Who within the organization receives the information and is responsible 
for the final decision? 23 

How and when is the applicant notified and given an opportunity to 
refute the record? 

What is the applicant's employment/volunteer status pending the 
outcome of the check? 

What provisions are made for identifying and verifying the person to 
receive the information and for ensuring that the information remains 
confidential? 

What types of employees and volunteers should be subject to screening? 
And how often; at initial hire/placement only or periodically? 

Given the differences in state laws authorizing or permitting criminal 
record checks, is there a standard protocol than can be followed? 

Who will pay for the costs associated with criminal background checks? 

What is the outcome of an applicant's refusal to submit to background 
screening, including a criminal record check and/or an organization's 
noncompliance with background screening requirements? 

► What is the applicant's hiring or placement status pending any 

challenge to the accuracy of the criminal history information received? 

Once these fundamental questions are dealt with, there are additional 
considerations regarding the actual review of criminal history information once 
an organization has obtained the applicant's record: 

/ Nature, severity, number and consequences of incidents disclosed. 

/ Age of individual at time of incident. 

/ Amount of time that has passed since event occurred. 



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/ Circumstances surrounding each matter, including contributing societal 
or environmental conditions. 

/ Relationship between the incident and the type of employment or 
service that applicant will provide. 

• Applicant's employment or voluntary history before and after the 
matter. 

/ Applicant efforts and success at rehabilitation. 

S Likelihood that the matter would prevent the applicant from performing 
his/her responsibilities in a manner consistent with the safety and 
welfare of the children served by the agency. 

/ Circumstances and/or factors indicating that the crime is likely to be 
repeated. 



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VI. OTHER SCREENING MECHANISMS 

Legislators and the general public are strongly cautioned against 
presuming that mandated criminal record checks are the end-all-be-all answer 
to fighting child abuse. If this misbelief takes root, support for other equally 
or more important measures may fail. The overriding sentiment is that 
criminal record checks are only a small part of an overall solution and unless 
they are done in conjunction with other screening measures, the money might 
be better spent on alternative prevention strategies. 24 

By relying on the use of criminal records, organizations may overlook 
other questionable behaviors -- including substance abuse, mental illness, 
emotional problems, sexual difficulties, poor judgment and insensitivity to and 
punitiveness towards children - that may indicate an individual's unsuitability 
to work with or around children. Finkelhor and Williams (1988) found that 
half of all child sexual abuse perpetrators had some prior social problem, such 
as substance abuse or a psychiatric malady. 

There are a multitude of other screening methods that child- and youth- 
serving organizations can employ, ranging from standard interviewing and 
reference checking to more complex and controversial procedures such as 
screening against child abuse and sex offender registries, psychological testing, 
drug testing, and home visits. 

A. Screening Against State Central Child Abuse Registries 

State central child abuse registries have become more popular in recent 
years. These registries essentially consist of information from child abuse and 
neglect reports. Some of the same criticisms, doubts and legal issues that 
plague criminal history record checks have been raised with screening potential 
employees and volunteers against state child abuse registries. Similar to the 
plight of criminal justice information systems, state child abuse registries were 
not developed for employment and licensing screening purposes. ■ instead, 
child abuse registries were developed to help investigate and track child 
protection cases and improve the provision of child welfare services; the focus 
was almost exclusively on intrafamilial cases with the goal of family 
preservation/reunification when in the best interests of the child. 

The use of the child abuse registry as a screening device for child care 
and youth-service workers grew out of the same helplessness and frustration 
that induced organizations to access applicants' criminal records. However, 
unlike criminal history records or sex offender registries, which are typically 
maintained by law enforcement authorities, state child abuse registry 
information is managed by the state social services agency responsible for 
child protective services. Moreover, unlike conviction information, which has 



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passed the standard of proof beyond a reasonable doubt, child abuse registry 
information has not been subject to such a test, compounding the problems of 
inaccurate and incomplete data that beset many state child abuse registries. 

A report from the California Children's Council denounced the growing 
use of its state child abuse registry for screening purposes, stating that "As a 
result of this rush to legislate, ... not much attention has been focused on the 
use or misuse or the screening and recordkeeping processes. ..." The report 
estimated that 65 percent of all child abuse allegations must be dismissed after 
an investigation (for a variety of reasons) and the overwhelming number of 
false reports makes registry accuracy "incomprehensible" (Sale et al., 1988). 
Due to the haphazard nature in which screening against child abuse registries 
originated, and the lack of uniformity in state statutes requiring such 
screening, there is a need for well-defined criteria and procedural safeguards 
to ensure proper maintenance and use of registry information. 25 Cohen 
(1985b) outlined some additional misgivings about the growing use of state 
child abuse registries for screening purposes: 

► Many child abuse registries are indexed by child subject, not alleged 
perpetrator; 

► Definitions of reportable child abuse vary across states and 
classifications and terms are not uniform; and 

► Registry classifications are generally too broad and all-encompassing to 
be used appropriately for screening. 

Use of State Child Abuse Registries for Screening Purposes 

Several studies document the extent to which screening potential child 
care and youth-service workers against state child abuse registries occurs, 
although it appears to be predominantly child care workers who are subject to 
this practice. According to Hayes and her colleagues (1990), approximately 
38 percent of the states conduct child abuse registry checks for family day ca;e 
staff; about one-third do child abuse registry checks on center care staff; and 
one-third conduct child abuse registry checks for both family and center care 
providers. 

The National Center for State Courts (1988) indicated that 68 percent 
of responding states use the central child abuse registry to screen applicants for 
day care, foster care and adoption; over half (56 percent) use the registry to 
track known abusers between jurisdictions (47). While screening in some 
states is limited to adoption, foster care and day care employees, others screen 
babysitters, camp counselors, child protective services (CPS) social workers, 
and volunteers who work with children. Figures D and E below represent a 
breakdown of child abuse registry screening activities for 45 states. 



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Figure D: SCREENING AGAINST STATE CHILD ABUSE REGISTRIES 

Breakdown of Activities of 45 States 



40 






36* 




Foster core AOoptive oorente COy care nirino Ooy core licenses 



Figure E: SCREENING AGAINST STATE CHILD ABUSE REGISTRIES 
Breakdown of Activities of 45 States 



4S 



40 



30 



25 



27* 




Source: National Center for Slale Courts. 1988 



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Presented below is a synopsis of several states' policies regarding the 
use of child abuse registries for screening (as conveyed by the National Center 
for State Courts, 1988), to help give readers an idea of the different state 
procedures: 

■ Connecticut screens adoption and foster care applicants against family and 
individual files only; there are no perpetrator tiles. For day care applicants, 

"the registry will provide information on when the person appeared in the 
records; die reason for referral; and the suspected perpetrator. All household 
members over 16 are checked and must sign a release. 

■ Florida screens adoption applicants and employees/volunteers seeking work 
with children. In 1985, legislation was passed calling for closer screening of 
those providing out-of-home care or persons working with children in shelters, 
foster care programs, drug and mental health programs, day care and other 
residential or non-residential licensed or registered programs. Applicants 
must consent to a search and the registry provides the following information: 
search results, date of report, and procedure for inspecting court records if 
judicial determination of abuse was made. No fee is charged for confirmed 
reports. 

■ New Hampshire screens day care and foster care staff and prospective 
adoptive parents. In 1986, the registry received over 5,300 requests from the 
Bureau of Child Care Standards of Licensing, over 980 requests from District 
offices, about 520 from other licensing agencies, and over 60 each of out-of- 
state and adoption searches. Disclosure is limited to designated District Office 
Supervisors, Bureau Administrators and other designated State Office 
personnel. 

■ Pennsylvania requires child care services employees to certify whether they 
have or have not been named as a perpetrator in a founded report; applicants 
cannot be hired if named in a founded report in the last 5 years. In 1986, 
Pennsylvania processed close to 46,000 requests, about 97.5 percent of which 
were potential child care services employees and 2.5 percent seeking voluntary 
certification. 

■ Utah screens prospective foster care providers, adoptive parents, and 
unlicensed day care providers. Department of Social Services employees are 
exempt from screening. "The perception of registry personnel is that 'hits' 
are important when they occur but are relatively rare. " The state gets about 
213 calls per month from other states requesting information on suspected 
perpetrators. 

Though individual states have a significant amount of autonomy in 
governing how their child abuse registries operate, not all states are satisfied 
with how the registry is currently managed. Figure F on the following page 
displays how 45 responding states judged their own child abuse registries. 
Only one-fifth of the states (9) reported an overall self-evaluation of "very 



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good" for their registry; over one-third (17) classified their registry as "good"; 
14 as "fair"; and 5 as "poor." 

Figure F: SELF EVALUATION OF CENTRAL CHILD ABUSE REGISTRY 

Responses or 45 States 



Good C20 0» 



F«lr C3^ OSO 




Source: National Center for Slate Courts, 1988 



Likelihood of Identifying Potential Offenders via State Child Abuse Registries 

Given the slight chance that a potentially abusive individual will have a 
criminal record on file in either a state or national criminal history repository, 
child- and youth-serving organizations may resort to screening against a state's 
central child abuse registry for better odds. Unfortunately, there is evidence 
that screening via child abuse registry checks may be just as ineffective as 
criminal record checks in revealing potentially abusive child care and youth- 
service workers. 

In New York State, for example, Governor Mario Cuomo recently 
sought to rescind the state's 1984 law requiring screening of prospective child 
care workers against the state child abuse registry to save $1 million. Such 
action was prompted by findings that the screening process has proved 
"inefficient and ineffective," and provided minimal return for the money. 
According to the State Social Services Department, less than 1 percent of the 
103,831 people screened in fiscal year 1990 had been accused of child abuse 
and/or neglect (The New York Times, March 12, 1993). As indicated in the 
additional examples below, the literature reveals that the identification or "hit" 
rate using child abuse registries ranges from less than 1 percent to only about 
2 percent (DHHS, 1985; National Center for State Courts, 1988): 



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• Florida estimates that out of about 200.000 requests, only 189 result in a hit 
(.09 percent). 

• Of the close to 46.000 requests Pennsylvania processed in 1986. only 146 (.3 
percent) had a record in a founded or indicated report: 69 percent for physical 
abuse; 16 percent for sexual abuse; 14 percent for neglect; and 2 percent for 
emotional abuse. 

• Of the 14,000 - 15.000 searches a year conducted by Virginia for persons 
providing child care services, about 2 of every 500 (.4 percent) result in a hit. 

• Screening of 366 applicants in New Hampshire yielded 167 possible matches, 
of which only 9 (about 2 percent) were actual hits. 

• Connecticut estimates that 20 to 25 percent of the names checked are found in 
the database, however it is not known how many of these are actual 
perpetrators since the registry lists non-perpetrators as well. 

• Since Illinois began screening foster home and day care center staff in 1982, 
650 matches have been identified; since screening of staff in licensed facilities 
began in 1986. 228 hits have resulted -- the total number screened is not 
indicated. 

As an alternative to screening against state child abuse registries, 
Cohen (1985b) suggests that organizations consider (1) requiring applicants to 
sign a declaration under penalty of perjury that they have not committed (or 
been convicted of) specified crimes; (2) disapproving persons who as 
parents/guardians have had their parental rights terminated or whose children 
have been deemed dependents of the state: (3) mandating checks of any 
previous denials, revocations or refusals to renew applicable licenses; (4) 
verifying an applicant's educational credentials and employment history; (5) 
relying on character/ employment references, not friends or relatives; and (6) 
instituting a probationary hiring period. 

B. Screening Against State Sex Offender Registries 

Maintaining a registry of convicted sex offenders, particularly child sex 
offenders, against which child care and youth-service workers can be screened 
is yet another protective option that many states have adopted or are exploring. 
Proponents of sex offender registries maintain that because sex offenders pose 
a high risk of reoffending after release from custody, their mobility must be 
monitored. Supporters of mandatory registration further argue that ensuring 
the public's safety takes precedence over the privacy rights of a convicted sex 
offender. Although Congress has considered legislation to encourage states to 
establish a sex offender registration process and central location for 
information collection, no such legislation has passed. Less than half of the 
states (21) have registration requirements for sex offenders; however, in 1987, 

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only 8 states had such a requirement. This inclination for states to track sex 
offenders is still on the rise; at least 12 states have introduced or drafted 
legislation addressing this issue. 26 

For those states that have implemented sex offender registries, 
problems seem evident, particularly when it comes to enforcing required 
registration. For example, as shown in Figure G, Texas has more than 3,000 
sex offenders on parole, but only about 1,800 offenders (60 percent) are 
registered (Office of Attorney General, personal correspondence, 1993). 
California estimates its compliance rate to be from 72 to 89 percent, while 
Washington State revealed a compliance rate of 81 percent as of November 
1992, up from 76 percent and 57 percent in November 1991 and 1990 
respectively (Lewis, 1988; Washington State Institute for Public Policy, 1992). 
More often than not, the burden of registration falls upon the individual 
offender, not the institution from which he/she was released or the legal entity 
which rendered the offender guilty of a sex crime. And while penalties may 
be enacted for failure to register, the ability to enforce compliance is lacking. 

Figure G: COMPLIANCE WITH SEX OFFENDER REGISTRATION 

Selected States 




Ca I if ornia* 



Washington 



* California reported 72% and 89% for two different groups released from prison in 1981. 
Sources: Lewis, 1988; Office of Attorney General, Texas, persona] correspondence, March 1993; 
Washington State Institute for Public Policy, 1992 

States also do not agree on who should be required to register — adult 
and juvenile offenders, first or "habitual" (i.e., repeat) offenders — and for 
how long offender information should be kept on record. For example, 



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Arizona and California require lifetime registration of sex offenders, while 
New Hampshire and Washington State only require lifetime registration of 
some offenders and 10- or 15-year registration for others. Most states' 
registration requirements range from 10 to 20 years, but many will lessen the 
term if the court declares the offender "rehabilitated." 

California and Washington are two states requiring juveniles to register, 
although California rescinds the requirement once the offender reaches age 25. 
Similarly, Texas registers a juvenile if he/she is committed to the Texas Youth 
Commission, but removes the name once the individual turns 21. Given the 
high incidence of abuse by juveniles and the recidivistic nature of child abuse, 
lifetime registration of both adults and juveniles may be warranted. The 
National Center for Missing and Exploited Children (1992), however, 
recommends in its model state legislation that only adult sex offenders be 
registered. 

As with criminal history information systems and state child abuse 
central registries, there are many issues to untangle. In fact, Tennessee's 
General Assembly suspended implementation of the state's sex offender 
registry to screen child care providers until July 1993 to enable further review. 
A 1988 report on the effectiveness of California's sex offender registration 
requirements identified several major problem areas: (1) lack of time and 
manpower at the local agency level, (2) lack of a statewide automated sex 
registration system and up-to-date information, (3) lack of knowledge or 
cooperation by the offender to provide necessary registration information, (4) 
lack of staff training and familiarity with the registration system, (5) lack of 
punishment for sex registration violators, and (6) lack of information sharing 
among criminal justice agencies (Lewis, 1988). 

Primary recommendations outlined in the National Center for Missing 
and Exploited Children's (NCMEC) proposed model state legislation include: 

Require lifetime registration. 

Require registration for both felony and misdemeanor convictions for 
relevant crimes. 

Require sex offenders to appear in person to register. 

Require regular verification of an offender's address, at least annually. 

Require registration within 10 days of assuming a new residence. 

Establish penalties for failure to comply with registration 
requirements. 

Allow information to be accessed only by law enforcement or 
authorized persons. 

Require local law enforcement to relay information to state criminal 
history repositories. 



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The last two NCMEC recommendations regarding access and 
availability of information are particularly important and warrant elaboration. 
Overwhelmingly, the states that have established sex offender registries limit 
their use to law enforcement purposes and do not allow other organizations or 
individuals to request the information for employment or licensing purposes. 
Two notable exceptions are (1) Illinois, which allows the Department of 
Children and Family Services access for background investigations, and (2) 
Oregon, which allows the Department of Human Resources access and also 
notifies the Teacher Standards and Practices Commission if the offender is a 
teacher or administrator. 

C. National Practitioner Data Bank 

The National Practitioner Data Bank, which is a national system 
enabling hospital and other health care entities to check on the status of a 
physician's license and whether a physician is or has been the subject of 
disciplinary actions, may be a useful model in developing a national 
background check system for persons working with children. 

In an effort to crack down on the ability of incompetent or 
unprofessional physicians to flee their current locale and set up new practices 
in different hospitals or states, Congress passed the "Health Care Quality 
Improvement Act of 1986," Public Law 99-660. Title IV, Section 402 of this 
law ("Encouraging Good Faith Professional Review Activities") requires the 
reporting of information to a central source when a physician's license is 
revoked or suspended, or if the physician is censured, reprimanded or placed 
on probation. Congress' goal was to develop a comprehensive national 
reporting system to follow unfit doctors from place to place. Congress 
claimed that the establishment of such a data bank was necessary since state 
disciplinary review boards and existing peer review systems failed to 
adequately identify incapable practitioners. 

The Department of Health and Human Services' (DHHS) Bureau of 
Health Professions garnered responsibility for implementation of such a data 
system and effective January 1989, DHHS awarded Unisys Corporation a 5- 
year, $15.9 million contract to develop and operate the National Practitioner 
Data Bank. (According to the Legislative History of P.L. 99-660, the 
Congressional Budget Office estimated that if DHHS maintained the 
clearinghouse, costs to the federal government would run $30 million in the 
first fiscal year and $10 million in each fiscal year thereafter.) 

Similar to legislative efforts calling for mandated criminal record 
checks of potential child care and youth-service workers, P.L. 99-660 
stipulates that hospitals and health care entities must obtain information from 
the data bank prior to hiring a physician and once every two years for existing 



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medical staff. Those hospitals and other medical care facilities which fail to 
consult the data bank can find themselves liable if the physician is later sued 
for medical malpractice. Civil penalties of up to $10,000 were also instituted 
to help protect the confidentiality of information. It should be noted, however, 
that DHHS advises health care entities to use the data bank with discretion as 
it is "primarily a flagging system whose principal purpose is to facilitate a 
more comprehensive review of professional credentials. Data received. . . 
should be used in combination with other sources of data in making 
determinations on granting clinical privileges or in employment, affiliation, or 
licensure decisions" (DHHS, 1990b). 

The legislative history leading to the enactment of this law describes a 
problem not unlike what happens in child care organizations that discover an 
abusive staff member: "[H]ospitals too often accept 'voluntary' resignations of 
incompetent doctors in return for the hospital's silence about the reasons for 
the resignations" (Legislative History to P.L. 99-660, 1986). To ensure that 
health care entities and physicians won't resort to "plea bargains," P.L. 99-660 
also requires health care entities to report cases where they resolve not to 
conduct an investigation if a physician agrees to relinquish his/her clinical 
privileges. 

Clearly, much of the rationale which led to the establishment of the 
National Practitioner Data Bank is relevant to the current predicament faced by 
child- and youth-serving organizations aspiring to weed out potentially abusive 
employees/volunteers who may infiltrate their agency. A closer look at the 
operation, maintenance and effectiveness of the data bank in ensuring quality 
health care would be valuable. 

D. Teacher Identification Clearinghouse 

The Teacher Identification Clearinghouse, operated by the National 
Association of State Directors of Teacher Education and Certification 
(NASDTEC), is a nationwide database of all teachers whose certification has 
been denied, revoked or suspended over the past 15 years. The clearinghouse 
was instituted about four years ago. primarily as a response to prevent child 
abuse in the schools. Donald Hair, NASDTEC's Executive Director, 
estimates that about 70 percent of teacher revocations in the clearinghouse are 
for child sexual abuse. He indicated that broadening the scope to include 
information on all school employees (e.g., bus drivers, custodians) would be 
even more beneficial. The clearinghouse currently does not disseminate 
information to outside organizations, mainly because of legal constraints, but 
Hair notes this is an area worth exploring (personal correspondence, February 
5, 1993). 



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State membership to the Teacher Identification Clearinghouse is 
voluntary. Currently all states except Iowa (which is in the process of joining) 
have signed clearinghouse agreements; this is a noteworthy increase from just 
eight member states in 1988. The cost of joining the clearinghouse is included 
as part of NASDTEC's membership fees, and each month NASDTEC sends 
out a list of all new revocations to every state; a complete listing is provided 
quarterly. Because listings do not include specific charges associated with the 
revocation or denial, states are directed to contact their respective certification 
offices if they require more information. Hair estimates that it costs 
NASDTEC about $20,000 a year to maintain and operate the clearinghouse. 

Both the National Practitioner Data Bank and the Teacher Identification 
Clearinghouse are two persuasive examples of how Congress and a national 
professional association, respectively, were able to establish fruitful central 
information systems to be used for employment and licensing screening 
purposes. Legislators and advocates embarking on further efforts to develop 
such an information system for child- and youth-serving organizations are sure 
to benefit from a closer examination of the operation, maintenance and costs of 
these two existing setups. 

E. Application Forms and Personal Interviews 

Developing a comprehensive written application and supplementing or 
clarifying information through a personal interview(s) can provide a 
tremendous amount of knowledge about a potential employee/volunteer and 
should be a first step in any selection or hiring process. Disqualifying 
information may be disclosed in these early stages, precluding the need to 
conduct more intensive and costly background screening. However, in today's 
competitive job market, there is growing suspicion about how forthright an 
applicant's answers will be either on an application form or in a personal 
interview. About 25 percent of resumes contain incorrect or exaggerated 
information, ranging from inaccuracies about identities and educations to 
falsifying reasons for leaving a job (Pankau, 1990). And in answer to the 
question "Does anybody really admit to criminal activity?" a 1987 study of 
225,000 job applicants showed that over 75 percent made no admissions of 
wrongdoing; about 6 percent admitted involvement in theft allegations at prior 
employment; just over 4 percent admitted committing a felony; approximately 
6 percent admitted committing minor criminal acts; and close to 5 percent 
admitted relatively frequent illegal drug use on company premises. These 
percentages are not to be construed as actual incidence rates (Sackett et al., 
1989). 

Keeping in mind that an individual may fabricate his/her competence, 
but being careful not to dismiss the importance of the application and ensuing 
interview, organizations should use these activities as a backdrop to judging a 



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potential employee or volunteer's overall character. The application form 
should be detailed enough to give more than a cursory overview of work and 
educational history. Unexplained gaps in employment, declining salary 
history, unusual lengths of military service, or obvious overqualifications 
should raise warning flags. The application also should include a specific 
question regarding convictions and any allegations of child or sexual abuse and 
indicate that false statements are grounds for immediate dismissal. Even if an 
applicant lies, such directness sends a message about the agency's position on 
child abuse. In addition, if contrary information is later discovered through 
other screening procedures, the organization (as previously stipulated) has the 
discretion to deny the applicant the position solely on the basis that he/she 
lied. 

In their survey of public schools, Titus and DeFrances (1989) found 
that on the application forms, 21 percent of the schools ask about other names 
used by the applicant, 16 percent require fingerprints, 11 percent require 
signing a waiver to allow review of state/ local police and FBI files and 63 
percent require none of these. In determining an applicant's eligibility: 

/ 84% ask about reasons for leaving previous employment 

/ 46% ask about revocation or denial of teaching certificate 

/ 34% ask about convictions or guilty pleas 

/ 27% ask about prior arrests 

/ 15% ask about pending charges 

/ 7% ask about acquittals 

• 78% ask what the specific charges were in cases where an 

applicant mentions a criminal charge 

/ 1 1 % ask about none of these 

Much of the literature indicates that the personal interview is by far one 
of the most important and useful screening devices in selecting staff. 
Organizations are advised to develop a standardized interview to assure 
consistency among applicants and help eliminate any subjectivity associated 
with using multiple interviewers. A team approach to interviewing and 
subsequent hiring decisions is also recommended, especially for larger 
organizations, to increase objectivity and attain different perspectives. 

Interviewers should address issues such as an applicant's experiences 
with children; childhood experiences (especially history of abuse); child 
developmental issues; problem-solving scenarios and proper caregiver 
behavior; and perceptions of children and childhood behavior. The use of 
vignettes, hypothetical situations, other written exercises and role playing are 
all recommended. 27 






175 



In addition, the Colorado Department of Social Services (1987) 
recommends having the applicant write a brief autobiography, inviting him/her 
to "share anything else you would like us to know about you." The 
department also points out that videotaping the interview, with the applicant's 
consent, saves time and provides a permanent record of exactly what 
transpired. Videotaping not only provides the agency with a standardized 
document that acts as a future safeguard, but may also deter child abusers 
from applying, knowing that any misleading or false information will be 
recorded on tape. 

Screening Tool Used by Big Brothers/Big Sisters of Greater Lowell, MA 

McCormack and Selvaggio (1989) developed an interview screening 
device specifically for the Big Brothers/Big Sisters of Greater Lowell 
(Massachusetts) to help identify sexual offenders who seek access to children 
through youth-oriented organizations. The authors' goal was to operationalize 
certain characteristics to measure the presence and degree of a given attribute. 
They caution, however, that the indicators are not intended to "prove" that the 
potential volunteer is a pedophile, but instead provide enough information to 
help alert personnel to potentially abusive applicants. McCormack and 
Selvaggio outline the following 10 personal characteristics which, if found 
together, should pique concern about potential volunteers: 

1. Indicates a preference for a child of a specific age. 

2. Indicates a preference for a child who has a history of abuse and 
neglect. 

3. Has a history of being abused as a child. 

4. Had little social contact as a teenager. 

5. Experienced frequent moves. 

6. Has been overly active in the community in the affairs of 
children. 

7. Has friends who are much younger. 

8. Refers to children as innocent or pure. 

9. Has many hobbies and interests that are appealing to children. 

10. Is undergoing his/her second or subsequent match with a child. 

Inclusion of the last variable was based on Wolffs (1986) finding that 
almost twice as many reported incidents involving Big Brothers/Big Sisters' 
volunteers occurred in a second or subsequent match. In cases where adults 
are paired with children, volunteers often may terminate matches early on 
because the child is unresponsive or the two did not get along. 

The 245-item screening tool is broken down into subsections on 
background information; relationships with children; family structure and 
environment; present life-style and relationships; and the match relationship. 



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Questions encompassing the above 10 indicators are interspersed in the 
appropriate sections. McCormack and Selvaggio affirm that using such a 
screening device serves to (1) protect the credibility of caseworker; (2) shield 
the community agency from liability; and (3) limit access of offenders into 
youth-oriented community agencies. The authors strongly recommend, 
however, that the instrument be used in conjunction with other precautionary 
screening procedures. 

John Walker, Executive Director of Big Brothers/Big Sisters in Lowell, 
said the agency has been using the interview screening tool for about five 
years now. The whole set of questions takes about an hour and a half to 
complete and is divided into two parts, the second of which focuses more on 
sex-related issues and is broached only after the applicant has had time to 
become comfortable with the agency and interviewer. The interview screening 
tool is used in conjunction with other screening practices, including criminal 
background checks, reference checks, asking applicants to respond to 
hypothetical situations, and home visits. Applicants are notified of all steps in 
the volunteer selection process, which takes two to four months to complete. 
According to Walker, about 25 to 35 percent of applicants do not follow 
through, and about a quarter of all applicants are rejected outright for "one 
reason or another." In 1991, the agency screened close to 100 volunteers who 
made it past the initial selection criteria (personal correspondence, November 
6, 1992). 

F. Reference Checks 

Many organizations verify or supplement their knowledge of an 
applicant by contacting a past employer. Although conferring with an 
applicant's past employer(s) seems like an obvious step in pre-employment 
screening, Lotitio and Bryant (1988) found that up to 75 percent of employers 
fail to check references before hiring an individual. Some organizations may 
shy away from reference checking because in today's business world, it can be 
a double-edged sword: on one side is the power of a former employee to sue 
for defamation; on the other, the power of a third party to sue an employer for 
negligent hiring. 

An employer's responsibility to check into an applicant's background, 
however, is magnified when the position requires the applicant to come into 
contact with the public, especially unsupervised contact. Case in point: A 
Colorado state court awarded a plaintiff $210,000 in damages after a 
McDonald's worker, who had previously been convicted of sexually assaulting 
children, assaulted a 3-year-old boy. McDonald's did not know about the 
conviction, nor did it check all his references. The state agency that placed 
the worker shared the liability (Collyer and Eastus, 1991). 



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To avoid defamation and negligent hiring claims when checking or 
providing references, Lotitio and Bryant (1988) suggest the following: 
maintain a corporate policy of truthfulness and accuracy; document all pre- 
employment investigation; insure that communications concern work-related 
matters only; obtain a written release giving employee's consent to release 
information; have the applicant explain any gaps in employment history; 
centralize who provides reference information; and provide information on a 
need-to-know basis only. In addition, an employer's verbal or written 
assurance that employment (and other) references will be checked will help 
assist in deterring those who have a problematic employment history. 

Figure H provides examples of reference checking practices followed 
by Big Brothers/Big Sisters and a sampling of public schools, while Figure I 
indicates that public schools are inclined to conduct reference checks, (both 
with prior employers and "other" character references), rather than criminal 
record checks. 

Figure H: TYPES OF REFERENCES CHECKED 
By Big Brothers/Big Sisters and Public Schools 





Pub i ic ccrioois 



Big Brotrws/6lg Sisters 
Past eroioyers S23 Other character rot y//A Other vol oros 



Sources: Carrilio. 1987: Titus and DeFrances. 1989 



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Figure I: TYPE OF SCREENING BY PUBLIC SCHOOLS 
By Employee Position 




i=*et emciyr '•of ac R\ N Otner r B < <x V///X Criminal record ce 



Source Titus and DeFraoces. 1989 

G. Psychological Tests 

As previously discussed in Section II, the literature reveals several 
offender and situational characteristics believed, but not proven to be linked to 
abuse. Some child abuse professionals have taken this philosophy a step 
further to construct psychological tests that they hope will determine with 
appropriate scientific validity a causal relationship between 
personality/behavior traits and child abuse. The church, in light of sexual 
abuse scandals, has increasingly turned to the use of such psychological and 
personality tests for prospective pastors. The Denver Post (April 28, 1991) 
reported that "[m]ost ministers believe they're 'called by God,' but a growing 
number of churches and synagogues want a recommendation from a 
psychologist as well." 

The power of psychological tests to identify employees/volunteers with 
a propensity for abuse, however, is debatable. After reviewing the literature 
on various psychological tests, Murphy and Peters (1992) concluded that 
"there is no research evidence to suggest that clinicians using all the tools 
available can profile sexual offenders with sufficient validity and reliability. . . 
. " Many psychological tests are general in nature and those tests that are 
child-abuse specific were originally developed to assess abusive parents, not 
child care and youth-service workers. 



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Some of the More Weil-Known Psychological Tests 

Probably the most recognized psychological test for assessing a parent's 
propensity for child abuse is Joel Milner's Child Abuse Potential Inventory 
(CAP). The CAP delves into six major areas: distress, rigidity, unhappiness, 
problems with child and self, problems with family, and problems from others. 
Those with high abuse scores are more likely to display a history of childhood 
abuse, low self-esteem, poor ego development, immaturity, moodiness, 
frustration, loneliness, self-centeredness and an aversion to responsibility 
(Anderson, 1988). Using the CAP, Atten and Milner (1987) also found that 
clear job expectations and overall job satisfaction were modestly related to the 
measure of child abuse potential (i.e., those content with their jobs are less 
likely to engage in abusive behavior). 

Haddock and McQueen (1983) administered the CAP Inventory, the 
Minnesota Satisfaction Questionnaire (MSQ) and a General Information Form 
to 2 1 known abusers and 2 1 known non-abusers employed by out-of-home care 
institutions. Their sample accounted for four job categories: psychiatric 
technicians, supervising psychiatric technicians, teaching home parents, and 
hospital workers/janitors. In addition to Milner's CAP-I Abuse scale, the 
authors found the following combined variables to be significant: 

► MSQ independence subscale, which measures an employee's satisfaction on 
the chance to work independently; 

»• MSQ advancement subscale, which measures hope of job 

advancement/promotion; 

► MSQ achievement/accomplishment subscale; 

► Employee's own number of children (two-thirds of non-abusers had less than 

2 children, while 24 percent of abusers had 2 children and 35 percent had 3 or 
more); 

► Childhood exposure to abuse and extreme discipline; 

► Alcohol consumption; and 

► Marital status/distress. 

Jones and colleagues (1990) did studies involving the CAP, the 
Personnel Selection Inventory (PSI), and other tests to assess honesty, 
violence, substance abuse, emotional stability and safety. The authors 
identified four areas in which child abusers tend to have problems: (1) 
difficulty adjusting socially (may be antisocial, alienated, lonely or delinquent); 
(2) emotionally unstable (experience a variety of conflicting emotions such as 
frustration, anxiety, depression, stress, low self-esteem); (3) impulsive and 
unable to resist their wants; and (4) frequently conflict with authority figures. 
While the authors concluded that the PSI is an effective instrument for 
identifying potentially abusive employees, they caution that it is "not a panacea 



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and should be used in conjunction with other credible selection devices (e.g., 
interviews, reference checks, criminal background checks, job simulations, 
physical drug tests, and supplementary paper-and-pencil tests) and effective 
monitoring programs (e.g., home visits, interviews with children, parents and 
child care workers)." 

The MMPI is another standardized psychological test that employers 
may consult. However, recent studies show that the MMPI may be an 
inappropriate tool since it cannot predict sexual abuse or provide a single 
profile that describes child molesters. 28 Organizations must be careful not to 
overestimate the usefulness of the MMPI; administered alone, as with other 
individual screening mechanisms, the MMPI cannot adequately predict abuse 
but may help provide one piece of the puzzle. 

Tfie Abel Screen 

More recently, Dr. Gene Abel of the Behavioral Medicine Institute of 
Atlanta has developed a test he coined the Abel Screen to facilitate the 
identification of individuals with pedophiliac tendencies. The screen, which is 
a series of four tests whose scores reveal 20 separate kinds of sexual interests, 
is considered to be most effective in detecting those who are attracted to young 
boys. According to Abel, the screen is noninvasive, highly accurate, and can 
be administered in about 90 minutes in any setting (Archdiocese of Chicago, 
June 1992c). As of this writing, the research on which these conclusions are 
based is in preparation for publication. To date, the authors of this report 
have not identified any published research findings that elaborate on the work 
done with the Abel Screen. 

Abel, himself, recognizes that the screen "will not cure the problem but 
it will be a response to the difficult issue of child molesters putting themselves 
in positions with access to children" (Archdiocese of Chicago, June 1992c). 
Further research is needed using various types of child- and youth-serving 
workers, not just known sex offenders undergoing treatment, to document the 
effectiveness of the Abel Screen. 

Based on the literature reviewed, the appropriateness of 
psychological/personality testing to predict potentially abusive behavior 
remains unclear. However, if an organization is contemplating the use of 
Milner's CAP Inventory, the Abel Screen, the MMPI or some other similar 
test as a screening mechanism, several issues first need to be resolved. These 
include (1) identifying the most appropriate psychological test, if any, to 
administer; (2) training or hiring qualified staff to conduct and interpret the 
test; (3) presenting the test in a non-offensive, non-intrusive manner, especially 
with regard to volunteers; and (4) determining how to cover the costs 



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associated with psychological screening. Anderson (1988) raises the following 
additional considerations: 

Who would designate applicants as having "failed" a test? 

Who will safeguard the test scores and make sure they remain confidential? 

What child abuse potential data will be released to failing applicants and how 
will it be released? 

What can be done to diminish the stigma associated with a failing test score? 

Will applicants who fail a test be allowed to retake it? at what point? 

H. Additional Pre-Employment Screening Options 

For those organizations that want to exhaust background screening 
options, there are a few additional methods open to them. One of the more 
straightforward and affordable involves obtaining an applicant's motor vehicle 
report (MVR). The MVR is useful to confirm an applicant's name, social 
security number, birth date and other identifying information, and also serves 
as a cross-check to uncover false or misleading information or other states 
where the person has lived or worked. Better yet, most states will charge only 
a few dollars for this service (Long, 1992). 

Another alternative, which may be especially useful for the voluntary 
organizations and foster care or adoptive parent applicants, is home visits or 
assessments. Carrilio (1987) found that 90 percent of Big Brother/Big Sister 
affiliates conducted home assessments of potential volunteers. Two additional, 
but somewhat controversial electives to be used in combination with other 
screening procedures include drug testing and requiring a one-year period of 
residency. 

To exercise many of the available screening methods presented here 
may entail a substantial doling out of human resources and chipping away at 
valuable time; two precious commodities that most organizations are reluctant 
to squander. The mobility of today's society also presents special difficulties 
in conducting background investigations and may lead to a demand for more 
time and people to complete the screening than originally allotted. Those 
agencies with insufficient personnel or time to conduct thorough pre- 
employment screening, but which have ample discretionary funds, may want to 
look into using a private background investigative firm. Services provided by 
these firms vary but can include reference checks, criminal background 
checks, drug screening, psychological testing and polygraph tests. The 
advantages of using an outside source to conduct background screening 
include: quick turnaround, legal accuracy, thoroughness, and in-depth 
analysis. The downfall is that these services may be only local or regional in 
breadth and can be quite costly. 



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Clearly, screening against state child abuse and/or sex offender 
registries is not without problems, many of which are similar to the pitfalls of 
criminal record checks. In addition, the National Practitioner Data Bank and 
the Teacher Identification Clearinghouse are limited in their scope and 
accessibility. Given the complications associated with these various 
information systems, child- and youth-serving organizations may opt for other 
screening measures that rely less on outside systems and more on internal 
investigation. 

I. Post-Hiring/Placement Procedures to be Used in 
Conjunction with Background Screening 

Many authors urge that prevention of institutional abuse should not stop 
at the pre-employment screening of applicants, but continue by addressing on- 
the-job issues such as training and improved supervision and monitoring. 
Screening, coupled with appropriate personnel policies, will help protect 
children and boost staff productivity. Adequate day-to-day supervision of staff 
and a probationary period for new employees/volunteers, ranks high on the 
safeguard list. 29 In fact, Finkelhor and Williams (1988) found that almost 
half of the perpetrators had been employed at their day-care job for less than a 
year at the time the abuse occurred. 

"The agency needs a clear and concise policy that sets the parameters 
for discipline and child management. An overall agency philosophy and tone 
or attitude must permeate throughout the ranks of the staff, and it must be 
effectively communicated" (California Association of Services for Children, 
1987). On the advice of DHHS (1985), an organization's written policies 
should include: (1) a code of conduct for staff relating to their behavior with 
children; (2) policies on reporting suspected abuse; (3) policies on 
investigating staff or applicants concerning abuse; and (4) policies on hiring 
staff previously accused, indicted or found guilty of abuse. Copple (1990) also 
recommends creating linkages between various regulatory systems regarding 
staff qualifications and certification requirements to help unify the work force 
and extend training opportunities. 

Ongoing personnel training should include coverage of facility's 
emergency plans and reminders on safety procedures; principles and practices 
of child care and the facility's philosophies; a review of administrative policies 
and procedures; and crisis management techniques. An additional line of 
defense recommended for child- and youth-serving organizations consists of 
awareness programs for children, parents and all employees and volunteers 
who work with or around children (77?^ News Chief, September 28, 1984). 



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J. Summary Statement Regarding Screening Methods 

Each of the screening procedures outlined in this section yields, for the 
most part, different information about an applicant's character. While criminal 
record and sex offender registry checks may provide specific criminal 
information such as felony convictions, screening against state central child 
abuse registries instead offers information gleaned from civil child protection 
investigations. In comparison, the more standard hiring practices (e.g., 
reference checks, application forms, personal interviews) provide bits and 
pieces of information that when culled together help an employer gauge an 
applicant's integrity and stability. Obviously all screening methods and other 
prevention strategies are not without cost implications for an organization. 
Because most organizations do not have the financial or human resources to 
employ all of these methods, a thorough assessment of the relative merits of 
each practice is essential. 



VH. CONCLUSIONS AND RECOMMENDATIONS 

A. Summary - What We Know to Date 

There is no disputing that we -- legislators, policymakers, child 
advocates, service providers and other concerned parties -- have our work cut 
out for us in fighting out-of-home abuse perpetrated by child care and youth- 
service workers. The first step, determining the true scope of the problem, is 
not an easy task given (a) the multitude of settings in which child care and 
youth-service workers reside; (b) the millions of children who come into 
contact with these adults; and (c) the absence of uniform definitions or 
methods to identify physical and sexual child abuse. 

There are no easy answers to preventing extrafamilial abuse. We know 
that people who abuse or neglect children in out-of-home settings are a diverse 
and complex population for which no single profile exists. And given the 
unpredictability of human behavior and the belief that there is not one but 
rather a series of factors leading up to an abusive incident, we must accept the 
impossibility of being 100 percent confident that all potentially abusive 
employees and volunteers have been screened out. This, however, does not 
mean that child- and youth-serving organizations are powerless; they can take 
advantage of the many available screening options, being careful not to rely on 
one exclusive mechanism in determining an applicant's suitability. 

From the discussion of legislative and regulatory activity affecting the 
screening of individuals who work with children, the crafting of any new 
federal and state legislation must be governed by a solid understanding of the 
issues. These complex issues include: identifying situations where children 



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are most at risk, improving the timeliness and accuracy of criminal record 
checks (e.g., enhanced data quality and disposition reporting), and developing 
procedures regarding the confidentiality and correction of background 
information. Improved communication and appropriate information-sharing 
between all relevant entities (e.g., child- and youth-serving organizations, 
federal and local law enforcement agencies, child protective services, licensing 
and regulatory agencies) will also go a long way toward the development of 
more effective responses to out-of-home abuse. 

Criminal History Record Checks 

As knowledge about out-of-home abuse has increased over the years, 
there has been a proliferation of wide-ranging ideas on how we should react. 
The area of criminal record checks and access to individual criminal history 
files, in particular, has received much attention and is a domain fraught with 
controversy and sticky moral and legal issues. Because empirically-based 
literature assessing criminal record screening of child care and youth-service 
workers is limited, current well-entrenched conflicts over the effectiveness of 
this type of screening are not likely to be settled anytime soon. 

Based on the literature reviewed, we can conclude that criminal record 
checks are not the cure-all to preventing out-of-home child abuse perpetrated 
by any one of the millions of child care and youth-service workers. Even if 
all child- and youth-serving organizations enjoyed direct access, free of 
charge, to state and federal criminal history records, the problem of abuse 
would not magically be eradicated. Child abuse is a complex problem to 
which there is no quick fix. Criminal record checks obtained in a timely 
fashion can provide a useful and important piece of the employee/ volunteer 
selection puzzle; however, they do not provide the complete picture of an 
applicant's suitability. And due to the lack of uniformity in existing state laws 
and regulations, criminal record checks are not applied consistently and across- 
the-board for all types of employees/volunteers who work with or around 
children. Further investigation regarding the appropriate use of criminal 
history information is needed, along with specific recommendations to increase 
the effectiveness of such checks. 

Other Screening Mechanisms 

The synopsis of other screening methods indicates that screening 
applicants against state child abuse or sex offender registries is not without 
problems, many of which are similar to criminal record checks (e.g., access, 
accuracy, timeliness, fairness to applicant, likelihood of identifying an 
individual with a record). The availability of child abuse and sex offender 
registry information, together with additional data maintained in systems such 
as the National Practitioner Data Bank and the Teacher Identification 



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Clearinghouse, also raises questions of efficiency. While each system may 
serve a slightly different function and keep its own separate records, there may 
be some duplication of efforts, especially with regard to criminal history 
repositories and sex offender registries. Further inquiry about the possible 
merging of systems and/or sharing of records would be useful for both 
providers and users of background information. 

Some of the other screening mechanisms discussed are also subject to 
limitations. For example, valid documentation as to the effectiveness of 
psychological/personality testing in identifying potential abusers is lacking. 
And even standard reference checking has become hindered by fears of 
defamation and negligent hiring claims. Two relatively problem-free methods 
are a comprehensive application form and in-depth personal interview 
procedures. Although it is clear that all child- and youth-serving organizations 
should inquire about certain issues (e.g., criminal convictions, work and 
educational history), the range of more intensive questions asked may differ 
slightly depending on the type of child- and youth-serving agency and the 
applicant position being considered. 

B. Preliminary Recommendations for Effective Screening 

Although a number of issues remain for analysis and much empirical 
evidence must be gathered to properly evaluate the effectiveness of various 
screening methods, child care and youth-serving entities do have a number of 
available options to screen prospective employees/volunteers who work with 
children. The recommendations presented in the literature fall into three 
general categories: (1) procedures for organizations conducting criminal 
record checks; (2) general prevention strategies for all child- and youth-serving 
organizations; and (3) policies and procedures for state licensing agencies to 
prevent out-of-home abuse. 

Conducting Criminal History Checks 

At this juncture, it is worth reiterating to readers that criminal record 
checks are only a small part of good hiring practices. If a child- and youth- 
serving organization is going to employ criminal background checks, whether 
it's mandated by law or internal organizational policy, then it should do so 
with (1) a thorough understanding of and compliance with appropriate state 
and federal laws and regulations; (2) full disclosure to the applicant of the 
screening procedure and purpose for which information will be used; (3) 
written authorization/release from the applicant; and (4) strict procedures to 
maintain the confidentiality of the record information (Long, 1992). 
Additional recommendations pertaining to criminal record checks, as well as 
child abuse and sex offender registry checks include: 30 



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■ Establish appropriate statutory definitions of institutional abuse and 
neglect and clarification of rights and responsibilities of all parties in 
given settings. 

■ Separate the employment screening function from the use of the 
criminal history and child abuse registry information as a diagnostic 
and risk assessment tool. 

■ Draft regulations and organizational policies on the appropriate use of 
criminal history and child abuse registry information and develop 
specific criteria for using these mechanisms for employment and 
licensing purposes. 

■ Provide an appeal process before an administrative law judge or other 
appropriate party. 

■ Establish an oversight committee to study, evaluate and monitor the use 
of criminal history and child abuse registry information for employment 
and licensing purposes. 

Despite all the unanswered questions and concerns about criminal 
record checks as a screening mechanism, Davidson (1985) concludes that 
"criminal record screening is an important, albeit imperfect, weapon in the 
arsenal which is available to the government and private employer to help 
protect children from maltreatment in out-of-home care. . . . Coupled with an 
effective pre-employment screening interview and scrupulous background 
check of references, the well-publicized conducting of a criminal record check 
becomes a device that should dissuade many pedophiles or other disturbed 
people," from gaining access to children through a child or youth-serving 
organization. 

Developing Additional Prevention Strategies 

A comprehensive background screening approach using the methods 
discussed throughout this report is a good first step in selecting quality child 
care and youth-service workers. But since screening is not foolproof in 
weeding out individuals who may harm children, an organization should 
consider adopting supplemental dissuasion measures. These auxiliary tactics 
can take the shape of succinct and explicit organizational policies and 
procedures. Ten of the more highly recommended actions to strengthen child 
abuse prevention efforts include: 31 

/ Institute written organizational policies and train staff on identification 
and reporting of suspected child abuse by employees and volunteers. 



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/ Report all allegations of abuse by staff to the organization's national 
headquarters, which may be able to help respond. 

/■ Develop concrete policies for when an allegation of abuse is made 
against organizational employees or volunteers (e.g., restrict their 
contact with kids, deal with the problem immediately). 

/ Train parents and children to identify inappropriate employee/ volunteer 
behavior. 

/ Require employees/volunteers to attend an orientation and sign a 
statement that they have read and understand the agency's written 
policies on treatment of children (e.g., discipline, management of 
difficult behavior) and the state reporting laws. 

• Increase parental involvement and communication; adopt an open-door 
policy for parents to make unannounced visits at any time. 

/ Provide educational programs on child abuse -- in particular, on the 
identification and tendencies of child molesters - for staff and other 
related community agencies. 

• Inform employees and volunteers that the agency will cooperate with 
local officials (child protective services and law enforcement) in 
investigation of cases. 

/ Advocate for legal and judicial reforms which ease the trauma suffered 
by children who testify in court. 

/ Have at least two caregivers on duty at all times, including early 

morning and closing, to help minimize the problem that 80 percent of 
abuse substantiations rely wholly on a child's testimony with no 
corrobating information from other witnesses. 



Increasing the Role of State Licensing Agencies 

On a broader scope, efforts to protect children from out-of-home abuse 
are not restricted to an organization's use of background screening methods 
and establishment of internal policies and procedures. State licensing agencies t 
too, can play an important role in preventing and responding to abuse in out- 
of-home settings by facilitating interagency cooperation and promoting uniform 
procedures. Some general suggestions offered include: 32 



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► Establish clear procedures for timely disposition of abuse cases, 
perhaps employing a multidisciplinary team approach (as promoted in 
intrafamilial cases); 

► Implement a system for mutual reporting of complaints among 
Department of Social Services (DSS) and child care agencies and 
clarify investigative responsibilities and notification requirements 
between involved agencies; 

► Adopt clearly written policies on information-sharing among agencies 
and implement mechanisms within and between states to track convicted 
offenders and prevent their continued work in child care facilities; and 

► Revamp licensing/registration laws to include minimum staff 
qualifications; required reference-checking procedures; mandated 
training; state regional office technical assistance; clear definition of 
adequate supervision; basis for suspension or termination of 
employees/volunteers; and authorization of fiscal penalties and/or 
revocation of license. In revising these laws, particular consideration 
should be given to eliminating existing exemption clauses so 
licensing/registration mandates encompass all types of entities providing 
out-of-home care or other services to children and youth. 

C. Looking Ahead to More Effective Screening and Other 
Prenention Efforts 

Our review of the literature has confirmed the need for more thorough 
analyses of screening methods. Identifying effective screening procedures will 
obviously assist organizations in hiring suitable employees and volunteers and 
protecting the children they serve. Systematic evaluations will also help detect 
certain factors or problem areas that, if responded to, may result in 
significantly different outcomes. Such analyses thus form the basis for 
developing more effective strategies to prevent child abuse. 

The Need for Cost-Benefit and Cost-Effectiveness Studies 

Any future legislative or programmatic requirements must qualify 
matters of funding and include provisions for cost-benefit and cost- 
effectiveness analyses and other systematic evaluation procedures. With the 
slashing of federal, state and city budgets - and the withering of private 
funding dollars ~ government agencies, foundations and corporations, and 
numerous service providers are all being forced to make more judicious 
financial decisions. This necessitates comparisons among prevention strategies 
to identify the most cost-effective methods and to specify which approach will 
yield more benefit in reducing the many damaging effects of child abuse. 



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Despite increased awareness about out-of-home abuse, systematic 
research on the impact of abuse has not developed at the same pace. There is 
minimal empirical literature to help guide the planning of effective prevention 
and management of abuse (Gomes-Schwartz et al., 1990). Individual 
prevention strategies (e.g., criminal record checks, parent and child education, 
staff training) have not been compared to one another on a dollar-for-dollar 
basis. In addition to cost-effectiveness analyses, cost-benefit analyses would 
help address whether allocating scarce funds specifically to prevent out-of- 
home abuse — instead of concentrating on abuse within the family — has a 
greater impact in reducing the incidence of child abuse. 

Current ABA Study on the Effective Screening of Child Care and 
Youth-Service Wo r ken 

As we conclude this report, readers are reminded that the purpose of 
this literature review is to identify and discuss the more prominent issues 
raised in the legal and social science literature regarding effective screening of 
child care and youth-service workers who may abuse children. This review 
serves to outline the framework for the current ABA Center on Children and 
the Law study of effective screening of child care and youth-service workers. 
With the support of the Office of Juvenile Justice and Delinquency Prevention 
(OJJDP), we hope that our present research efforts will shed light on many of 
the issues raised in this literature review. Through this on-going endeavor, the 
ABA Center on Children and the Law seeks not only to provide insight on 
what screening methods are available and currently being used by child- and 
youth-serving organizations, but also to identify those methods most effective 
in preventing out-of-home abuse. The final product of this two-year 
undertaking, to be completed in June 1994, will include recommendations for 
a national approach to screening of child care and youth-service workers, 
which we hope can be readily adopted and implemented by those organizations 
entrusted with the care of our children and youth. 



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ENDNOTES 



1. As part of the current study, the ABA Center on Children and the Law is 
developing a directory of the various types of child- and youth-serving 
organizations, complete with a listing of professions, jobs and volunteer 
positions; the estimated number of individuals in those given professions and 
positions; and the estimated number of children served. The directory will 
serve to identify the potential universe of those who work with or around 
children and analyze the degree of risk and accessibility to children in different 
settings. 

2. The average center-based child care program enrolls 62 children, with 
enrollment ranging from fewer than 10 to more than 100 children. The 
average family day care program enrolls 6 children, with about half caring for 
fewer than 6 children and most of the remaining providers caring for between 
6 and 10 children (Kisker et al., 1991). 

3. At the beginning of 1990, there were approximately 80,000 center-based 
early education programs, with an average staff size of 10-11, and 118,000 
regulated family day care providers, the majority working alone and 40 
percent using an assistant (Kisker et al., 1991). Unregulated family day care 
homes alone may account for 60 to 90 percent of the total supply, meaning 
there may be anywhere from 496.000 to over 1.9 million such homes (Hayes 
etal., 1990). 

4. Estimates for public and private school employees are based on figures 
from the Digest of Education Statistics, J 992; figures on volunteers are 
Volunteers in Public Schools (Michael, 1990). Staffing estimates for 
independent schools are extrapolated from the National Association of 
Independent Schools, whose membership accounts for two-thirds of all 
independent schools, employing an estimated 73,000 to 74,000 staff (NAIS 
Statistics, 1992). 

5. See, e.g.. Daro, 1988; Fuller, 1989; Gomes-Schwartz et al., 1990; Groth 
etal., 1982. 

6. For possible offender characteristics, see, e.g., American Public Welfare 
Association (APWA), February 1988; Boy Scouts, 1987; California 
Association of Services for Children. 1987; Copeland and Haldopoulos, 1988; 
Finkelhor and Williams. 1988; Fuller, 1989; Goldstein. 1987; Haddock and 
McQueen, 1983; Lanning, 1987; Milner and Chilamkurti, 1991; Shaughnessy, 
1984; Simon et al., 1992; and Wolff, 1982. For possible situational 
characteristics, see, e.g., APWA. February and June 1988, August 1989; New 
York State Subcommittee on Child Abuse, 1983; Rogers and James, 1991; and 
Shaughnessy. 1984. 

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7. The ABA Center on Children and the Law has sought to fill this gap by 
conducting an in-depth supplemental study on the effectiveness of screening 
practices in conjunction with the Department of Defense. This piece of the 
project will provide concrete information on the implementation, results and 
evaluation of background screening methods, in particular, criminal record 
checks. The Department of Defense makes an excellent host for such a study 
due to the law (P.L. 101-647) mandating screening of all employees in 
federally-operated or federally-contracted child caring facilities and the variety 
of settings (e.g., child development centers, schools, medical facilities, and 
voluntary, recreational groups) in which DoD serves children. 

8. See, e.g., Justice et al., 1985; Lauten, 1985. 

9. See, e.g., Abel et al., 1987; Colorado Department of Social Services, 
1987; Rice et ah, 1991. 

10. Those readers interested in a more detailed discussion of criminal history 
information systems may want to read the Office of Technology Assessment's 
1982 publication, An Assessment of Alternatives for a National Computerized 
Criminal History System. 

11. In limited circumstances, employers may conduct nationwide screening 
through the FBI without utilizing a state agency intermediary. To wit, certain 
banking institutions, registered futures associations and nuclear power plants 
may directly request the FBI to screen its files (Davidson et al., 1991). 

12. Information on fees was obtained from the Department of Defense (1993) 
and personal conversations with several state agencies responsible for 
processing criminal record checks. 

13. See, e.g., Davidson et al., 1991; SEARCH Group, April 1984. 

14. There is a plethora of literature discussing the right to privacy. For a 
general discussion of the federal constitutional right to privacy including 
informational privacy, which Prof. Alan Westin ( Privacy and Freedom . 1967) 
has defined as "the claim of individuals, groups, or institutions to determine 
for themselves when, how an to what extent information about them is 
communicated to others," see, e.g., Cass, 1991; Grossberg, 1991; Turkington, 
1990. 

15. See, e.g., Turkington, 1990. 

16. See, e.g., SEARCH Group, April 1984; Bureau of Justice Statistics, 1981. 

17. Davidson et al., 1991 discussing New York v. Ferber, 454 U.S. 1052 (1982). 



78 



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18. See, e.g., the Bureau of Justice Statistics (BJS), January 1992; BJS, 
November 1990; BJS, April 1989; BJS, November 1988a and 1988b; BJS, 
1982; SEARCH Group, July 1988b; SEARCH Group, March 1983; SEARCH 
Group, November 1981. 

19. It should be noted that Title VII only applies to paid employees; 
volunteers are not covered. Davidson et al. (1991) citing Smith v. Berks 
Community Television, 794 F. Supp. (E.D. Pa. 1987). 

20. See, e.g., Bates, July 1990; Cohen, 1985a. 

21. See, e.g., ABA Juvenile and Child Welfare Law Reporter, 1992, 11:107 
discussing Grimes v. Cavazos, 786 F. Supp. 1184 (S.D.N.Y. 1992) where the 
state and city were found not liable under section 1983 because the intent to 
discriminate was not alleged; ABA Juvenile and Child Welfare Law Reporter, 
1991, 10:148, discussing Millspaugh v. County Department of Public Welfare, 
937 F.2d 1172 (7th Cir. 1991). 

22. SEARCH Group (April 1984) also discusses "public disclosure of private 
facts," one of the four types of the tort invasion of privacy. The extent to 
which this and other types of invasion of privacy actions have been the basis 
for challenges due to inaccurate criminal record dissemination is unclear from 
the legal literature reviewed. 

23. Titus and DeFrances (1989) found that within the public schools, the 
person(s) responsible for evaluating the impact of background information 
were: superintendents (78 percent); principals; (33 percent); personnel 
departments (27 percent); department heads (5 percent); general counsels 
nprrentV srhonl hoards H nercenO and securitv offices (1 Dercent). 



(4 



aepanmerus (,z / pcrcciu;, ueparuucm ncaui yj pcucui;, gcnciai cu 
percent); school boards (3 percent) and security offices (1 percent). 

24. See, e.g., Davidson et al., 1991; Gordon, 1986-87; Morgan, 1984; Titus 
and DeFrances, 1989. 

25. See, e.g., Maney and Wells, 1988; Sale et al., 1988. 

26. Information on state sex offender registries comes primarily from an ABA 
Center on Children and the Law survey (February 1993) of Attorneys General 
from the 50 states and the District of Columbia. Supplemental information 
was gathered from a December 1992 draft report from the National Center on 
Missing and Exploited Children (NCMEC); a February 1993 internal memo 
from the Idaho Attorney General's Office; and a December 1992 report from 
the Washington State Institute for Public Policy. The states that have sex 
offender registration requirements include Alabama, Arizona, Arkansas, 
California, Colorado, Florida, Illinois, Louisiana, Maine, Minnesota, 
Montana, Nevada, New Hampshire, North Dakota, Ohio, Oklahoma, Oregon, 
Rhode Island, Texas, Utah and Washington. Those states that have introduced 
or drafted legislation include: Alaska, Idaho, Iowa, Kansas, Kentucky, 

79 



193 



Michigan, Mississippi, New York, South Carolina, Tennessee, Wisconsin and 
Wyoming. In addition, several states collect DNA samples from sex offenders 
after their arrest for profiling analysis. (South Dakota, for example, reported 
it is in the process of cooperating with other states and the FBI to establish a 
national DNA data bank to assist in the solving and prosecution of future sex 
crimes.) Readers also may be interested to know that Wisconsin has 
developed a nursing home assistants abuse registry to prevent abusive 
assistants from future employment at any federally certified Wisconsin nursing 
home facility. This register also covers employees and institutional aides at 
facilities which serve developmentally disabled children. 

27. For information on interviewing applicants, see, e.g., Ball, 1986; 
Colorado Department of Social Services, 1987; Hoeltke and Ross, 1987; 
Patterson, 1991. 

28. See, e.g., Anderson, 1988; Carrilio, 1987; Murphy and Peters, 1992. 

29. See, e.g., Broadhurst, 1986; Copple, 1990; Finkelhor and Williams, 
1988; Staley et al., 1986. 

30. See, e.g., Cohen, 1985a; Davidson, 1986a; Sale et al, 1988; Rutledge, 
1992. 

31. See, e.g., Baker and Collier, undated; Davidson, 1986b; Wolff, 1982. 

32. See, e.g., Davidson, 1985; Kusserow, 1990; Russell and Clifford, 1987; 
New York State Subcommittee on Child Abuse, 1983. 



80 



194 



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219 



ELLEN MUGMON 

S324 ELIOTS OAK ROAD 

COLUMBIA, MARYLAND 21044 

(301) 596-5538 



September 7, 1993 

The Honorable Don Edwards, Chairman 
Civil and Constitutional Rights Subcommittee 
House Committee on the Judiciary 
806 O'Neill House Office Building 
Washington, D.C. 20515-6220 

Dear Congressman Edwards: 

The Subcommittee on Civil and Constitutional Rights held a hearing on H.R. 1237, 
the "National Child Protection Act," on July 16, 1993. I attended that hearing and 
appreciate the opportunity to submit written comments on this important child 
protection measure. I strongly support H.R. 1237 and commend you, 
Representative Schroeder, and the other sponsors for introducing it However, I 
believe the following issues must be addressed if children are to be adequately 
protected by this legislation: 

* The definitions of "child abuse crime" and "background check crime" are under- 
inclusive. There are other categories of crimes that "bear upon an individual's 
fitness to have responsibility for the safety and well-being of children." (Victims of 
Child Abuse Act of 1990) Moreover, many serious crimes, including sexual 
crimes, are often plea-bargained to lesser offenses such as assault and battery. In 
my view, therefore, comprehensive checks are absolutely necessary. Please see the 
attached relevant materials on SB 825 which was introduced during the 1993 
General Assembly session in Maryland. Please note, in particular, the case 
summaries. In general, limiting the scope of the crimes makes criminal history 
record searches considerably less effective. It also contributes to time delays 
because it hampers efforts to automate the criminal background check process and 
because separating releasable information from non-releasable information is time 
consuming. 

■ Section 3, subparagraph (a) of the bill should be amended to include arrest as 
well as conviction information. According to the U.S. Department of Justice in 
1986, "Many [extrafamilial child abusers] have previously been arrested for violent 
or exploitative acts against children - some a number of times. However, if they 
have not been convicted . . . laws deny their employers or potential employers 
access to their records." Consequently, "the vast majority of arrested child sex 
abusers are able to go from job to job with litde fear that arrests in connect with 
previous employment will ever be discovered by future employers." 



220 



■ Section 5, subparagraph (4) excludes the reasonable use of corporal punishment 
as a means of discipline from the definition of child abuse. This exclusion should 
be amended out of the bill for public policy reasons and because it is unnecessary. 
There is no state where the reasonable corporal punishment of children is a crime. 
Moreover, while it is evident that not all children who are corporally punished are 
abused, it is also evident that the corporal punishment of children is not a wise or 
safe practice or one, for that matter, that should be encouraged by the U.S. 
Congress implicitly or explicitly. Please see the attached letter on SB 688 for a 
further explanation of this issue. 

• On Section 5, subparagraph (12), reference is made to a poverty exemption from 
the definition of negligent treatment This exemption should be stricken. It is 
inconsistent with the Child Abuse Prevention and Treatment Act and the federal 
regulations and policies adopted pursuant to its passage. It is my understanding 
that HHS has notified certain states that have this exemption in their laws that it 
must be removed or the state will lose its eligibility for federal funds under the Act 
You may wish to contact Madeline Nesse in the office of General Counsel of the 
Department of Health and Human Services for more information. 

■ During the hearing, the spokesman for the Boy Scouts of America commented that 
the "focus of this legislation should be employees who have an economic interest in 
their position" rather than volunteer organizations. However, according to Dr. 
Gene Abel, a national expert who studies child molesters, "[the Boy Scouts have] 
got a real problem on their hands . . . The Scout leader is not the only position that 
a sex offender can take, but it is an ideal one for a pedophile . . . All volunteer 
organizations are troubled ... by this same issue. The volunteer organizations are 
just perfect for pedophiles." (See attached reprint of a Washington Times expose 
on the Boy Scouts of America and a transcript of a recent ABC Television interview 
with a Boy Scout official on this subject) Unfortunately, in my opinion, the Boy 
Scouts of America have consistently chosen to minimize this serious problem, 
rather than adequately screen its leaders. In this regard, please note the cases in 
the attached materials in which child molesters with criminal records were able to 
become Boy Scout leaders and subsequently harm children because their records 
were not checked. Therefore, volunteer organizations, as well as other 
organizations that provide services to children should be included in this child 
protection measure. 

In closing, thank you for considering my views. Would you please advise me of 
any actions that are taken as a result of my observations? If you have any 
questions, please do not hesitate to contact me. 

Sincerely, 




Ellen Mugmon 



221 



STATE OF MARYLAND 

EXECUTIVE DEPARTMENT tlvQSQll 
WILLIAM DONALD SCHAEFEH ""tSSLTCl?— 
GOVERNOR 



OFFICE FOR CHILDREN. YOUTH. AND FAMILIES 

301 WEST PRESTON STREET BOOM 1502 
BALTIMORE MARYLAND 2120' 

rx>n229-Aiaa 

TOD I30'i 333 309« 
'AX 130" 333 524» 

NANCY S GRASMICK SPECIAL SECRETARY 

CMILOREN YOl/TH AND f AMIDES MOTCh 2, 1993 

The Honorable Walter M. Baker 
Chairman, Judicial Proceedings Committee 
300 James Senate Office Building 
Annapolis, Maryland 21401-1991 

Dear Senator Baker and members of the Committee: 

The Governor's Council on Child Abuse and Neglect strongly supports SB 
825, "Criminal Background Investigations - Child Care Facilities," which 
strengthens this important child protection and anti-crime measure by expanding 
conviction information provided to government agencies and private employers. It 
has become clear to the Council that the present list of offenses in this statute is 
under-inclusive, especially in view of the fact that there are other categories of crimes 
which "bear upon an individual's fitness to have responsibility for the safety and 
well-being of children," (Victims of Child Abuse Act of 1990 ) and the law does not 
require that a positive background check result in disqualification. 

Consequently, there are individuals whose criminal histories indicate that they 
pose a danger to children who cannot be deterred from, or identified after they have 
sought or obtained positions of public trust which can give them access to many 
vulnerable children over long periods of time. Nor can they be penalized for lying 
about their criminal histories. (See attached case summaries). We also support 
provisions in SB 825 which establish penalties for violations of the confidentiality of 
criminal history information ar.l for the failure to require criminal background 
investigations by those mandated to do so. 

In 1985, when the Criminal Background Investigations law was first 
considered by the General Assembly, the Governor's Task Force on Child Abuse and 
Neglect, which drafted this child protection measure, limited the list of offenses 
primarily because the 1985 proposal would have precluded the hiring of those 
convicted of the specified crimes. In 1986, the year which saw the passage of this 
legislation, the Task Force took an alternative approach, vesting the decision as to 
whether or not to hire or license in the hands of the employers or licensing agencies 
on the presumption that they would act in the best interests of children. 

The Task Force also mandated criminal background checks based on 
fingerprinting rather than name and date of birth checks, not only because the FBI 
requires fingerprint-based checks (Fingerprints are now required for state checks as 



80-609 0-94-8 



222 



well.), but because pedophiles and other aberrant adults "have been known to 
employ aliases and falsified documents in their attempts to slip through screening 
procedures." (See "Is There a Pedophile on Your Payroll?" by Richard Titus and 
Carol DeFranccs, National Institute of Justice, 1990). 

Moreover, there are many precedents in Maryland and other jurisdictions for 
performing comprehensive criminal background checks. Individuals in 
approximately 2,000 organizations in Maryland are subject to comprehensive 
criminal history checks. Only child care workers in Maryland undergo a limited 
check with regard to specifically listed offenses. Ironically, all public employers and 
certain public licensing agencies, as well as certain private organizations have for 
many years been authorized by COMAR regulations to receive full Maryland 
conviction data. Furthermore, the Department of Juvenile Services requested 
legislation which was enacted in 1991 which gives DJS the ability to obtain full 
conviction information from the FBI because this statute did not prevent the hiring 
of inappropriate personnel. 

As of 1992, the last year for which a summary of this type of legislation was 
prepared, 49 states have passed legislation regarding criminal background checks on 
child care workers. The great majority require out-of-state checks in recognition 
that this is a mobile society and that individuals can reside in one state and commit 
crimes in another. Maryland, for example, is a small state which borders on five 
jurisdictions. 

Most states also detail the kinds of criminal histories that either must be 
examined and/or prohibit employment. These range from convictions for any crime, 
except a minor traffic offense, (Maryland criminal history information does not 
include traffic violations) to convictions in special classes of crimes, such as crimes 
against persons, and drug offenses. Some states also include admissions or findings 
of guilt regardless of convictions, as well as arrest records. Moreover, Congress 
passed the Victims of Child Abuse Act of 1990 . which requires that employees in 
federal agencies and facilities who provide child care services undergo a 
comprehensive national criminal history background check based on fingerprints. 
Under this law, some types of convictions prohibit employment, and all others may 
be considered in the decision making process. 

Even with the limited checks we have in Maryland, 156 persons in 1991, and 
141 persons in 1992, with histories of murder, child abuse, rape, kidnaping, as well 
as sexual and drug offenses were identified because of this law. Of those, 35 in 
1991, and 39 in 1992 of those were picked up by the FBI check. It should be 
noted that these numbers do not include individuals who have been identified under 
DJS's separate statute. These statistics, however, cannot determine how many 
individuals have been deterred by this screening measure from applying for positions 
of public trust with regard to other people's children. Nor can statistics show all 
those who would not have acknowledged their criminal histories in the absence of 
the law. This deterrent effect is present, no matter what the time frame for the 
return of the check, since the application process includes the completion of a sworn 
statement. Thus, those who fail to disclose convictions or pending charges are guilty 
of perjury and can be, and have been, successfully prosecuted. In any case, 
applicants and licensees can begin work before the checks are returned. 



223 



Please note that the passage of this bill will decrease, not increase processing 
time because CJIS staff will not have to take the time to separate out certain 
convictions from others, as they are now doing. It will also decrease processing time 
because it allows for the automation of certain procedures. 

Nor does this legislation require anything more of child care workers 
currently covered in the statute. Decision makers would only receive additional 
essential information which would enable them to more effectively protect children. 
This legislation takes steps to streamline the system and further protect children, 
goals which those who provide services to children say they want to see 
accomplished. 

In sum, we agree with the conclusions of Howard Davidson, Director of the 
American Bar Association's Center on Child Advocacy and Protection "that criminal 
record screening is an important . . . weapon in the arsenal which is available to the 
government and private employer to help protect children from maltreatment in out- 
of-home care. A mandatory screening law suggests that as a public policy, people 
whose backgrounds would render them clearly inappropriate to be placed in 
positions of trust and authority over children will not be tolerated in the child care 
system. Coupled with an effective pre-employment screening interview and 
scrupulous background check of references, the well publicized routine of a criminal 
record check becomes a device that should dissuade many pedophiles or other 
disturbed people from entering into a child care or youth services position." We 
therefore urge the Committee to give SB 825 a favorable report. 



Thank you for considering our views. 



Sincerely, 

Ellen Mugmon, Chairman 
Legislative Committee 




224 



FACT SHEET 
CRIMINAL BACKGROUND INVESTIGATIONS - CHILD CARE 

FACILnTES 

SB 825 

SUPPORT 

Prepared by Ellen Mugmon 

for the Governor's Council on Child Abuse and Neglect 

Q. Why does the Criminal Background Check law list only ten kinds of crimes? 
(Three additional categories were added during the 1991 session.) 

A. The original 1985 version of the bill would have prohibited people with specific 
criminal convictions from working in child-related jobs. 

Individuals in approximately 2,000 private organizations in Maryland are subject 
to comprehensive criminal history checks. Only child care workers undergo a 
limited check with regard to specifically listed offenses. 

Q. Why does the law need to be changed to include other crimes? 

A. There are other categories of crimes which "bear upon an individual's fitness to 
have responsibility for the safety and well being of children," (Victims of Child 
Abuse Act of 1990) and the statute does not require that a positive background 
check result in disqualification. 

Q. Are criminal background checks constitutional? 

A. Tou don't have the right of privacy with judicial proceedings of public record." 
(Barbara Mello, Staff Attorney for the ACLU of Maryland in 1986) 

The child's basic right to protection and safety overrides the adult's desire to 
obscure his criminal record from scrutiny. 

As of 1992, the federal government and 49 states, including Maryland, have 
enacted legislation regarding criminal background checks and child care workers, 
recognizing that employers, licensing agencies, and parents have a reasonable right 
to know whether or not people to whom children are entrusted on a daily basis have 
criminal histories which indicate they pose a danger to children. 

Q. How can SB 825 help to further protect children in Maryland? 

A. The attached summary of cases describes children who would have been 
protected had the criminal histories of their caretakers been known and 
demonstrates why the list of offenses in current law is under-inclusive and why 
employers and licensing agencies presently do not have sufficient ability to exercise 
necessary caution when selecting individuals for position of public trust with regard 
to other people's children. 



225 



CASE SUMMARIES - SB 825 - SUPPORT 

Prepared by Ellen Mugmon 

for the 

Governor's Council on Child Abuse and Neglect 

In 1989, Linda Johnson was arrested and later convicted in Washington, D.C. for 
murdering a nine month old baby under her care. She had slammed the baby's head against 
a wall numerous times because the child would not stop crying. Police also discovered, 
after sending her fingerprints to the FBI, that she had a long arrest and conviction record 
in Louisiana, which included forgery, and burglary, as well as arrests for criminal neglect 
and armed robbery. (The Washington Post . "Ex- nanny Had Record Before Slaying," 
February 2, 1989) None of her prior convictions in Louisiana would have triggered a 
positive check under the present statute. 

In 1988, the Juvenile Services Agency unknowingly hired a convicted felon as a 
supervisor at the Boy's Village in Prince George's County. During his employment 
there he helped four boys to escape from the facility. He had spent more than ten years 
in prison for robbery, burglary, and receiving stolen goods. JSA officials were unaware 
of his past criminal history, even though he had undergone a criminal records check 
because the crimes for which he was convicted are not included in the statute. (The 
Sun . "Agency Screening Can't Spot Felons During Hiring," February 26, 1989). While 
DJS can now screen this individual out, because of the passage of a law in 1991 to 
remedy this situation, other child-serving organizations cannot. 

In 1989, New York attorney Joel Steinberg, was convicted of first degree 
manslaughter in the notorious beating death of his illegally adopted daughter, Lisa. 
Incredibly, Steinberg and others like him can pass a Maryland criminal background 
check. 

In January 1988, Martha Guba, a family day care provider in Virginia, was 
convicted of felony child neglect. She had given a six month old baby an antidepressant 
to stop him from crying. The baby died as a result. But it was not her first crime. 
Police found, after sending her fingerprints to the FBI, that under six different aliases, 
she had been convicted in two other states of larceny, vagrancy, disorderly conduct, and 
grand theft, as well as the neglect of her own infant children. ( Washington Post , "Girl's 
Death Highlights Need for Home Day Care Regulation," January 17, 1988). None of 
these convictions, even the ones for child neglect, would have engendered a positive 
criminal background check in our state. 

A cult leader and several of his followers were indicted for conspiracy to deny the 
civil rights of 29 children who they allegedly held in involuntary servitude in Oregon 
and California. Their alleged acts culminated in the beating death of an eight year old 
girl. ( The Sun , "Eight in Group Accused of Enslaving Children," February 9, 1991). 
Again, there is no reference to this type of crime in our law. 

Diane Jones was convicted in Baltimore in July, 1992, of battery for assaulting 
two disabled patients in a Catonsville nursing home. Jones was "forbidden to work with 



226 



senior citizens or children" by the court. Nevertheless, she can pass a criminal 
background investigation in this state for child care workers, since battery is not one of 
the listed crimes. fThe Evening Sun . "Nurse's Aid Jailed for Assaults, July 28, 1992). 

In 1969, George Slater was charged in the District of Columbia with first degree 
burglary, sodomy, rape, and robbery. He pled guilty to the burglary count, and the 
remaining charges were dismissed. In 1970, in Montgomery County, Slater was 
charged with assault with intent to rape, assault and battery, robbery, and larceny. He 
pled guilty to larceny. All other charges were dismissed. Mr. Slater could pass 
Maryland's criminal background check law and work with children. (See Carolyn W. 
Cramer v. Housing Opportunities Commission of Montgomery County , 1985). 

In February of last year, in San Francisco, a television station exposed a meeting 
of a pedophile group, the North American Man Boy Love Association, which had been 
holding its meetings at a local library. Its spokesman, Alan Davis, told reporters that no 
one in their organization had ever been arrested. But it was later discovered that his 
real name was Nicholas Alan Palmer, and that he had been previously convicted of 
soliciting sex from a nine-year-old boy. (See Washington Tunes , Pedophile Group 
Shakes Up City," February 10, 1992). Mr. Palmer is an example of why criminal 
background checks based on fingerprints are necessary. 

A Baltimore County mother who left her two young children home alone was 
convicted of reckless endangennent in connection with their deaths. ( The Sun . Mother 
Admits Reckless Endangc-ment," March 20, 1992). Since reckless endangerment is not 
one of the list of crimes, her conviction would not be picked up under present law. 

Dennis Miller, a Virginia elementary school teacher, was convicted of assault and 
battery for fondling a student. Local school systems in Maryland would never find out 
about his conviction in Virginia should he apply in Maryland for a teaching job. ( The 
Washington Post , "Manassas Teacher Convicted of Fondling Student," July 3, 1992). 

An 18 year old Washington man was convicted of assault with a dangerous 
weapon in the severe scalding of his 6ve month old daughter. fThe Washington Post , 
"Man Guiltv in Scalding," January 27, 1993). His conviction would not engender a 
positive check in Maryland. 

A 33 year old Westminster man who kicked his five year old son down concrete 
steps, severely injuring him, could also pass a criminal background check in this state 
because he agreed to plead guilty to battery instead of child abuse. 

A twenty year old Fairfax County babysitter, Jennifer Salas, was convicted of 
involuntary manslaughter of a seven-month-old Virginia boy. Salas had thrown the 
baby into a playpen, cracking his skull. ( The Washington Post, "A Nightmare Come 
True," June 13, 1992). Ms. Salas' conviction would be missed under current law. 

A Howard County camp employee was convicted of molesting several children 
under his care. He had been previously convicted in Virginia of assault and battery as a 
result of a sexual child abuse complaint. His prior out-of-state convictions would not be 
picked up under present law. 



227 



STATE OF MARYLAND 

EXECUTIVE DEPARTMENT 

WILLIAM DONALD SCHAEFER 
GOVERNOR 



1 



OFFICE FOR CHILDREN YOUTH. AND FAMILIES 

301 WEST WESTON STREET ROOM ISO? 
BALTIMORE MARYLANO 71201 
I30'IZ««I«0 
TOO 1301) 333 30M 
FAX (301 1 333 «« 

NANCY S QRASMICK SPECIAL SECRETARY 
CHILDREN. YOUTH. ANO FAMILIES 



March 2, 1993 



The Honorable Walter M. Baker 
Chairman, Judicial Proceedings Committee 
301 Senate Office Building 
Annapolis, Maryland 21401-1991 

Dear Senator Baker and members of the Committee: 

The Governor's Council on Child Abuse and Neglect strongly opposes SB 
688, "Child Abuse and Neglect - Corporal Punishment," which excludes the 
"reasonable use of corporal punishment as a means of discipline from the definitions 
of child abuse and neglect." We oppose this bill for the following reasons: 

1. Current law already permits parents to corporally punish their children, and to 
physically injure them when doing so. Only physical injuries which occur as a result 
of cruel or inhumane treatment or malicious acts "that indicate that the child's health 
or welfare is harmed or threatened" are prohibited in Article 27, Section 35 A, and 
only those physical injuries of a child that "indicate that the child's health or welfare 
is significantly harmed or at risk of being physically harmed" are considered abuse in 
the Family Law Article. Thus, in our view, these statutes create a high threshold in 
defining the physical abuse of children. Please note that many other states' statutes 
define physical abuse as non-accidental injuries for the purpose of reporting with no 
other caveats. 

2. Hence, the right to corporally discipline one's child in Maryland has been and 
continues to be a defense to what would otherwise be an assault and battery. It is 
further justified under the label of "Domestic Authority." According to the Court of 
Special Appeals, in Anderson v. State , this privilege remains with regard to children 
"although other and earlier exercises of domestic authority involving relationships 
such a master-apprentice and husband-wife have been relegated to the dustbin of 
history." 

3. Notwithstanding the acceptance of physical punishment of children in our laws, 
research on this subject shows that the approval of corporal punishment of children 
has "important implications for the understanding and prevention of the physical 
abuse of children .... Although most physical punishment docs not turn into 
physical abuse, most physical abuse begins as ordinary physical punishment .... 



228 



Moreover, being the subject of physical punishment trains future parents in the use 
of violence" rather than in alternative disciplinary techniques which are far more 
effective. Studies also "show that the more physical punishment that parents 
experience as children, the higher the proportion who engaged in abusive violence 
toward their own children and their own spouses, and the more parents used 
ordinary physical punishment, the greater the percentage who were worried that 
they might get carried away to the point of child abuse." ("Physical Punishment and 
Physical Abuse of American Children: Incidence Rates by Age, Gender, and 
Occupational Class," in Physical Violence in American Families by Barbara 
Wauchope and Murray Straus, 1990). 

4. Furthermore, public opinion is consistent with research findings. According to 
the National Committee for the Prevention of Child Abuse 1992 public opinion 
survey, the vast majority of respondents felt that "physical punishment is detrimental 
to a child's well-being, . . . and only 20% believed that physical punishment never 
leads to injury. Clearly, the physical punishment of children is a significant part" of 
the explanation for the high rate of physical abuse of American children (Wauchope 
and Straus). 

While it is evident that not all children who are spanked are abused, it is also 
evident that the corporal punishment of children is not a wise or safe practice, or 
one, for that matter, that should be encouraged or touted by the General Assembly 
implicitly or explicitly. In any case, parents who discipline their children in this 
manner are more than sufficiently protected under present laws designed to protect 
children. Consequently, there is no need for this bill. In essence, it is redundant. 
We therefore urge the Committee to give SB 688 an unfavorable report. 

Sincerely, 




Ellen Mugmon, Chairman 
Legislative Committee 



229 




Scouting's sex abuse trail leads to50 states 



Bv Pamc* Bovw 



For parents, the local Boy Seoul 
troop u a safe place to send the kids. 
For child molesters, its an ideal 
place to meet them 

The result: on an average of more 
than once a week for the past two 
decades, a Cub Scout. Boy Scout or 
Explorer has reported being sex- 
ually abused by a Scout leader 

An investigation by The Washing- 
ton Times shows that at least 1.151 
Scouts have reported being abused 
by their leaders over the past 19 
years, maJung sex abuse more com- 
mon in Scouting than accidental 
deatns and serious injuries 

In that time, at least 416 men have 
been arrested or banned from Scout- 
ing for molesting the boys in their 



care— and experts say the real num- 
ber of abusers and victims is prob- 
ably several tunes higher. 

Those are among the findings of an 
investigation that rurned up abuse by 
Scout leaders in all SO states and the 
District of Columbia 

"1 was naive to think the Boy 
Scouts was such a safe place.' said 
the mother of a Maryland bov abused 
by his Scoutmaster "1 thougnt the 
Boy Scouts was a sanctuary' 

In fact, the examination of sex 
abuse in Scouting reveals a long- 
standing paradox for the naoons 
most r e v er ed youth group: for 80 
years the Boy Scouts of America 
have given boys some of the best ex- 
periences of their lives, but for SO 
years some men have used the Boy 
Scouts of America to have sexual re- 
lations with those boys. 



"That's been an issue since the Boy 
Scouts began." said James Tarr. the 
nations Chief Scout ExecuDve from 
1979 through 1984 

The Scouts say the number of 
abuse cases is low considering ail 
their volunteers. They have alio 
taken steps to fight the problem. 

The Times examined the problem 
by reviewing internal Scout records 
and tens of thousands of pages of 
court records from around the coun- 
try, including confessions of molest- 
ers and testimony from children; by 
interviewing molesters, families of 
victims. Scout leaders, sex abuse ex- 
perts an J awyers: and by analyzing 
the cases on a computer database. 

Among the findings 

• Each year from 1971 through 
1989. an average of at least 21 male 
Scout leaders and camp workers 



were banned from Scouting -or ar- 
rested for sexual misconduct with 
Cub Scouts. Boy Scouts and Explor- 
ers The acts ranged from proposing 
sex acts and fondling boys in their 
sleep to performing oral sex and in- 
tercourse with the children, 

• During that tunc an average of at 
least 60 Scouts were reported abused 
each year, with some of them abused 
dozens of tunes before telling any- 
one. Experts and Scout off icuus say 
those figures are probably a fraction 
of all the abusers and victims, since 
most child sexual abuse iszrt re- 
ported and most abusers arem 
caught 

"1 would guess that tne number of 
actual cases is even far greater than 
that." said Anne Conn, director of the 

tet ABUSE, pap 2 



*•>-■; v . "... \i ffm „"««•: 

■- Evwy day. cornrnunrtws ail ow 
its* country bi b sornenow touched 
by to* pood votkj of the Boy £T 
Scoua of America. And every ■ *V» 
day. cfttfnxi in comrnuruba* «l '\ 
over the country go through the *£.' 
haror of sax abuse. For many t* V 
people, the Scouts are supposed 
to be • haven from such honors.-** 
> From May 20-24. 1991. The l"Jpt : 
- Washinoion Times ran a five-part - 
senea about sex abuse In the Boy " 



i 'ABOUT THte REPRiKnr :B§^" 

Seouu at An»nca-;The eert«s, **\n every sate and the Distort cl motastere. how they seduce t 
csied "Scouts tttpgCgjomi" — -ColUmWa.-AI ■ tone when the" Boy" how the abdsraflectaTStBoYirii 
how child molesters wrfhe .f ... . Scouts, ol ^mencs win saying; • J.»and hewthe mjsttr— 
country's most populacyputh fe? ithiy had two to 10 reports ote«->.V responded, to the* 
organization totjjve eexwlth S k '- abuse each year, this protect.: ■ „ are tales about the boy v 
children.. -lZ&3*&££?s'o? bund that over tne past.1 9 years.,* rwnsetf after being abu» 
. LThts protect began witji •>»*)»«. at leasMi e Scout leaders have ■<•■ ■-. man who may be tne most prolifi 
lawsuit by a vlrginiaiby jfro had ." been accL-sed,rtnx>teglnoTrore^ k mctestef.lriscotang, the S 
been moiestea by rus'Scput . v «Er - than 1 v 000 Scouts. rviisSiiji^ >-^l'. leaders'who uied to keep « 
leader. It grew into a six-monffr-t*', The senes includes 34 stories.'*-'--' cases quiet and the experts whoj 
mvwooaoon that uncovered /-33>- plus' graphics, mat show'why -• ^U .developed a program to curbjjj 
reports ol abuse by Scout leaders. Scouting is so attractive to ' ." iCS ■■ abuse. <*W.rwi$ti» 



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Thl* transcript has not yet btco chocked against 
videotape and cannot, for that reason, bo 
guaranteed aa to accuracy of speaker* and spelling. 
(JPM) 

DAY ONE Transcript #115 

June 14, 1993 

FORREST SAWYER. ABC Newe: Gcod evening. I'm 
Forrest Sawyer and thi* <a D«y On* Tonight, a Day One 
investigation reveals a secret about the Boy Scouts of 
Amanee 

FORMER DELAWARE SCOUT Ke liked little boy* 

I wee a little boy. 
SAWYER: ivoiat-ovtr] Day One uacovsrs Tiles that saow 
for rlsnarias the Bey Scouts have known scout troop leader* 
who molest chiHren. 

BlJkJCZ LEWIS. Bey fleouts Spokesman Oa* ceae 

is one too many. 

SAWYER: Well. then, you v* pot iibmi ■ hundred on 

average a year. That's s nundrec time* worse problem. 

. ueioe over) TVoy still don t «uii you to uiw about tt. 

KEN LANNING, FBI Pedophile Expert: There s no 

human being tntinr to acdueo than on edoieeoeBt boy. 

FORMER DELAWARE SCOUT ! m*an. I have three 

children myeelf. and I wouidn t even have them in the 

Boy Scouts. 

SAWYER: Ivo-.ofOtMTJ Juauc* la America: whs can afford 
it? 

MAN The only way you can have -ustic* in America ia 

if you hare money. 
SAWYER: (uoxx-ovtrj And if you don't, you get a public 
defender, fighting a system that's falling apart. 

RICK TESBTER (till. I *-o to court nrery day facing 

overwhelming odds. 

JOHN HOCKENBEHKY, ABC Newe: WW, wwuld 

the founding fathers aay about the system? 

Judge CALVIN JOHNSON: They would be absolute- 
ly appalled. 
SAWYER: (voie+ootr) Alto tonight, they're powerful, ter- 
rifying, deadly. Most people run away from tornadoes, but 
this man runs after them. 

WARREN FATDLEY. Photographer Dave's the 

Terminator" of norm chasing. 
SAWYER: (vo*e*-ov*H Tonight, the storm chaser, on the 
road in search of tne perfect tornado. 
ANNOUNCER: From ABC New*. Forrest Sawyer. Sheila 
MaeVicar. John riochen berry , Michel McQueen. Jay Schad- 
ier. and John MrKsTiri* this is Day One. 
[Commercial brtaM] 

Be Prepared 

ANNOUNCER: D«y On*, with Forrest Sawyer, con- 
tinue*. 

FORREST SAWYER: We begin tonight with a stccy that 
could touch nearly every family in America and anyone 
who's ever put on a Scout uniform. First, listen to this let- 



ter the Boy Scouts of Amino wrou to us. It says, The 
Soy scouts r.as been tne cataiyat for much of the aware- 
ness and discussion of child acuta that has emerged in 
recent years.'' It is true, tna Boy Scouts have maae en ef- 
fort to educate Scouts and their parents about the oangvs 
of child abuse, but that'e not tne wnole truth A four -month 
Day On* lnveaugation has reveeled that, for most of this 
century, the organization has kept secret files en hundreds 
of troop leaders scruseci of being periii|i~iiia* child 
molesters. But even though they knew they had this prob- 
lem, the Boy Scouts chose to do little shout it. In fact, they 
kept the truth from fsmilies who put then- trust in tne 
scoutmg tradition. 

(Boy SeoutM promotional vidto) 
HENRY FONDA: When you help start a scout 
troop, there* no guarantee one of the boy* grow up 
t o be a n actor. 

AST RONAUT: Co to the moon, twtos. 
HENRY AARON: Hit 755 home runs. 
Pre*. GERALD FORD: Grow up to be president 
But you never know. 
SAWYER: lvoxc*-ou*r) It I part of the American dream. 
to be a Bov Scout, to *w*ar to be physically strong and 
morally straight, to issrs to stand up for what you be- 
lieve in. Every year, four million bova share the dream 
that for a few of them, it will become a nightmare, the 
Boy Soouta of America is a target for pedophile*. 
KEN LANNING. FBI Pedophile Expeat: I think the 
Bay Scout* is on* of many organizations, in my opinion, 
whicn is potentially highly vulnerable. There is no hu- 
man being on th* face of the earth easier to seduce than 
an adolescent boy in his early teens. They hsve an ease 
of sexual arousal, they're curious, theyr* exploring 
their aexuality. On* of th* things that you're always 
wnrbing tnwnirla is gatnng tha child tn have tn ehang* 
clothing or spend th* night with you. The Boy Scouti 
give you that opportunity, you take overnight hike*. An 
other thing about the Boy Scout* ia that it provides i 
t—»*»'-[ nsthsauB which thee* offenders always need. 
SAWYER; [voicr-ovtr] The Bay Scouts of Amenc 
mien child mnleetatwn is a problem, but they say the: 
only became awsre of it in 1985. after one alleged ess 
made national headline*. 

(inurvuwuig] Were there no significant problem* iz 
side she Boy Scout* before 19837 
BLAKE LEWIS. Boy Scouts Spokesman- Not thi 
we're ewere of. no. 
SAWYER: None at all? 
Air. LEWIS: Not that we're ewer* of. 
SAWYER: In fact, the Boy Scouts' own confident) 
records, obtained by Dsy One. show they've beam ewe: 
of the significant problem inside their own argnnuatx 
fox dorados. The eecrct files, from the year* 1071 
1991, show th* Boy Scout* banned ever 1.400 peopls f 
abuse or suspected abuse. The file* shew that abuse 
served for years without being detected, and whan th 
were BSsasjM ilia Suuuis eugsged in ooveruue to ke 
their imaged* as. 

(voux-ovrrj Shortly after it* founding in 1910. i 



246 



Bey Seoul* of American oeean aaeou-.g the confriennn 
file* They were to eerve as the WIMI ceanng r.cue* 
of people who ahould cot be u»w in. EacE d*» 
voirniiori nimt w*a to be cheeaed agamot the file*, 
and anyone "UTn'trH ■* ai *.o be i:*tea to prevent aim 
from rejoining. Our inver.ifit-.cr. bona thii ryrtex »•• 
l- from : » _mj • 

"CARL B': I'm very th.-u.ed ibout the fact that, 
throughout sty toouting. 14 vein of eooutina. there 
wen 18 lag.**, young men :n»t made Eagle while I 
wet either ucRiat eeouimaiier or icouttti liter. 
SAWYER. .Loiof-oiwr/ Cert B.. a eonvjeiac pedophile 
who agreed tn talk tn ua if w* didn't um hu laat neme. 
Carl'* aerving SO yean m e Virginia pnaon. Before tnau 
-• wiv»d m :".vf niff»r»n: eonui '.roope. If hu firet troop 
id Wilmington, Delaware had enecked Car. a Sivy 
record, they mey n»vr Uamari -,» wu court-martialed 
6* moieaung young ooy* 

,'OmpAic "Genevo/ —inrr.m/irfini i/iaranu 

.inemu-.V 
SAWYER You bed been reieeeed rrwn Mae Navy fnr 
feaniei ehuae 
-CARLS*: Yea. 

LAWYER; 3id you worry that wnen you applied to the 
Boy Seouu that the Bey Scou'.e might put the** two to- 
rrtner. might come up with that fan'' 
•CARL B": I dent thick it occurred to me It turned 
out not to be a problem. 
SAWYER. They didn't cheek? 
•CARLB': They didn't eheei 

SAWYER. ,\-ete*-ov€ri Over :n: couree of a year. Carl 
■nmtrtfi eeveral boy* When one of them finally told hie 
>choo> pnaupao. Carl *u allowed to quietly loeve uwn. 
FORMER DELAWARE SCOUT Ke liked hitle boy*. 
'. wee e little boy, and he dad whatever he had to to 
make that work. He a a lick trade. 
SAWYER Were yuu efnud u." pr oe e c uuoc? 
•CARL B" He, at the v.m* 1 waeM. It waa kind of put 
under the rug, nobody oeali »uh ...» .»»•. 

WYER; ,'peaae-ewer/ And nooody dealt with the 
:rtuaa Buffered by the cnildren^ jiittei. 
FORMER DELAWARE SCOUT. It bun me. It hurt 
me bad, 1 mean. I have three children luywmll aud I 
wouldn't even have them in the Boy Scouts. 
SAWYER; If there is as alleged instance of child uu» 
reported, ia it true that the Boy Seouu of America L- 
wire contact law enforcement agenctee? 
Mr. LEWIS. Ye*. That'*— thaf i the practice. 
SAWYER: in every emgle mrtance thi* baa been true? 
Mr. LEWIS To the beet of my knowledge, yea. 
SAWYER: So yon now of no tinge injury any- 
where, a Boy Seouu leader ha* aimpiy left the troop, 
gone to iivr-— ' place, eomeume* without the parent* 
even being tald? 

Mr. LEWIS To the beet o: ay knowledge, any time 
we've become aware of * eitu alios, it* going to be 
reported. It'i pong to be reported to u* eunreement of- 
ft~.u That tndrndual'i ngiatration u going to be die- 
eanonued and theVre going to be placed into the u> 



eugihl o vo lunteer file 

SAWYER .coict-oixrj I; fact. Lan o. wu never 

reported to the police anc .-.;i name »u not ended to 

the natlonaJ heedquarur* confidential fUem. ao Carl 

waa able to move tnrougn tnree other Boy Scout troop a. 

from Connecticut to Rhode I aland. e.w*y* appearing to 

be the perfect acoutmaeter. 

PARENT OF FORMER SCOUT 1 would ear not only 

waa he chanrmeuc and a good eeout leader, he put thi* 

kind of dedication into anyuung that he did. 

Mr. LANMNG: People think of ■*'■* mok«.uri a* 

bemg evil, hnmbl* people, and thi* guy euu nil graa*. 

and work* hard on the job. and he goae to church on 

Sunday. He aeemingiy coeen t have any of theae other 

•j-tita and cnarecterurue* that we would laeotify with 

aomecody a* evtl aa a child moi eater 

SAWYER: Ivovwoutr) By i960. Carl had a bono on 

•ha weter in Bamngton. Rhode I aland. He ukee to uke 

an Seouu out on hi* beat. The oovr parent* had grown 

totruat him. 

PARENT OP FORMER SCOUT: The night before 

the i -indent with my aon. actually Carl came to my 

luaiaa. aat at my table, ate cur -'"*»'»*« m my living 

room piayed my organ, tang with my children, and th»« 

the rxnrt day attempted to moiert them. 

FORMER RHODE ISLAND SCOUT My ftrn un- 

eaey feeling with him it when we went iwimsunf »^^ 

he wanted ev er yb od y to akavry-drp, and I waint— 1 

Aidnt— I »nm tnut thet at all. And loeijlailj juat 

took off their nathmg *uha and went mnmoi, and I 

-jrt walked off 

SAWYER: ,';. oicf-oK- ' Mentha laur, Carl took a man 

direct approach When ne wee rejected. he> we r mwl thi 

boy not to yl V 

FORMES RHODE ISLAND SCOUT He eaid. *Don' 

mentwri this to anyone. No one will belie** you." It' 

•»-err mtrmumtme, 

SAWYER: /i>ote*-ev*r; Bat he did tail hie father, wh 

called the poliee and the Boy Scout trorp c 

PARENT OF FORMER SCOUT. The 
though* that Cerl wee the bee* thing te eoeae M *ow 
laoe atnee ice cream, and I earn* bete* the eommt 
tee and it w«a uke 1 waa ee triaL We ■■» eeneaderi 
wrong in thia. 
V' SAWYER. You muet have been a heak ef a eee> 
1 eerier, beeauae you were charged with eight count* 

eaomal aUw uf children and the tree*) mmmnm. ye> 

troop *w"" y> TT rallied around you 100 percent, did; 

believe a word uf it, 

"CARLB": That i true 

SAWYER: And they were convinced yea were bel 

railroaded. 

•C ARLB* : Ye*. 

SAWYER: Until you pleaded guuty. 

■CARLB": Yea. 

SAWYER: ,'twtcr-ovrr7 Carl waa eenueoed u f 

yean' pro of job and he moved out of Rhode lalaod. 

tried to Ray *way from boy* and tried therapy, bu 

few yean Uter he was back, applying to bo a Boy So 



247 



leader u> Restoc. Virginia. 

rintmuwingj You have left * trail of tu*p*eted and 
admitted child abut*. You cave been ccnvicjao of enild 
ahuse. And you applied to a Boy Scout troop. 
"CARL B" Yea. I All out the application in Ration. I 
ruiad rt :n ebaoiutaly honeauy. 1 lifted Rhode ft lend. I 
listed Connecticut In fact. 1 might have even listed De- 
laware. 

SAWYER: You wan pretty convinced that they'd catch 
up with you at the outset. 

"CARL B" Yea. And when it didn't happen. I figured 
just the raverae, is that they had looked and said. "He 
want through therapy, in not a prenlem. it's not going 
j> happen again." 

SAWYER: You're iying u yourt*lf. you're doing ail 
aorta of things, but really, you anew. 
"CARL B" Try to undareund. The allure of the scout- 
ing experience, of doing ail of the potitiva things that I 
had done in the part for young people, was awfully, aw. 
fully pewarfui. I knew that I had this touch of being 
sbU to mount* people and get them to help than- can.- 
dren, and get involved with the troop, and have the 
young men grow and mature. 

SAWYER: Didn't you remember wnat you did to those 
people in Rhode island? 

"CARL 8": I — you're got to remember that I did not 
think of that. 1 couldn't. If I started to think of that, it's 
psmfui. it hurts made, it eonffrms that I'm terrible. 
You scuff the feelings away, you rationalise them awry 
and lay, "It's not going to happen again." 
SAWYER: ivctexutr) But it did happen again. In 
'.984. Carl waa convicted on five counts of sexually 
abusing boys in his Reaton scout troop, and ha began 
serving his prison term. 

The Boy Scouts' eonfldantial files show Carl la not 
■ions. Other convicted child molesters have managed to 
become scout leaden. Erie Patrick Avant lap?/ eon. 
vtctad of actual abuse in 1979. ha became a afloutmaatar 
ic 19M. Richard fl**** 1, a convictwfl fnr aenial abuse m 
1964, a scoutmaster m 1981; m 1983. toe troop kicked 
him out tor malaatmg bny*. hut the Roy Scouts at abin 
ica never turned him in to the polios. He was finally ar- 
rested in 1M1 for molesting his feetar ehud. tv ~ , f > " 
Birney (ipfl: eocrrictad in 1976 of sexually abusing a 15- 
yoer-old Explorer Scout in Maaaacaueecta; by 19s* he 
was with another troop in Pennsylvania, and two yean 
later, another eoavietiea. Themae Heaksr of Ulinoia- 
charged with abuamg scouts in his troop in 1961, but ha 
didn't go into the file until 1970 and. 16 yean laser, he 
triad again to become a scout leader and a routine check 
failed to turn up his name and he got baeat in. Hacker 
waa finally arrested m 1988 and. by that time, poiios 
raeveluded be had ahiitea aute than 100 shidroa. 

/en uiwam V Expert* tell us child m oi att a r s often 
rationalise their heihaTinr eonvinemg themae Wee that 
the children are parity responsibla for what's happen- 
ing. What is man ■■——■»' is thst sttorney* for toe Boy 
Scouts hava used the same argument when victims de- 
cide to sue. and una 1M1 lite Buy demits here been 



sued over 60 times, with the crgi nnennn agreamg to 
pay out more than 815 million in damages to vutime of 
sexual abuae. 

{inurumvinsJ In the court ease* whan the Boy 
Scouts of America hava been brought in as defendants, 
sttorney* hev* blamed boys for keeping their abuae by 
scout leaden secret, in one ease ssyma a boy should be 
held partly responsible for not reporting the abuse 
sooner, in another ease aaking a hoy on whether ha en- 
joyed oral sex with an adult. Why were the boys treated 
this w ay by your own attorney*? 
Mr. LEWIS: I've heard that language from plaintiff*' 
attor ney*, yea. 
SAWYER la it not true? 
Mr. LEWIS: 1 don't— I can't **y that that's true or 

not. 

SAWYER: Aaking a bov if he enjoyed oral aax with an 
adair? 

Mr. LEWIS: I certainly hava not seen any of that. 
SAWYER: Would it surprise you to know that your 
own attorneys did it? 

Mr. LEWIS: I can't (peak to what has been aaid In the 
courtroom. Thet'e not my ana of expertise. 
SAWYER: Would it surprise you? 
Mr. LEWIS: I guest my feeling la yea, ir would be a 
surprise. 

SAWYER: Ivoict-ovtrl In 1988 the Rny rVouu of Aaaer. 
iea Initiated three policy change*. Their Soy Seou 
Handbook now eames with a nrw pamphlet, addressed 
to parent*, that discusses the problem of sexual abuae. 
They elao produced twr» videos for Bey S ee ut e end Cub 
Scouts. The boy* do beer about the danger* of aexual 
— tbuae. but ea nut (a eiiaee are peyvr_d«p j« adas_s hu ae f e. 
ACTOR: [ m A Tim* io fiSV I know the •eon. At 
Uaat. I thought I did. than something weird hap- 
pened to me. 
SAWYER: .'»«»o»-i Alao in 1988 the Boy Beauts 
altered their application form. It now inchkdee the ques- 
tion, "Have you ever been charged with ehfld eeejee* or 
abuser The file* clearly demonstrate aa obv-ou* fact: 

.-^iti ao/oiae uigy Isth'ere a eheck on that statement? 
/Bar. LEWIS: Agaiaw it'a difficult to cheek the*. Rules 

vary from state to state. There are actually tome place* 
\ when it is illegal to get en iaveetigatian en a person » 

criminal background. 
~~8AWTERj But why dent you r equire it, wh en yo u cau 

requir e K? _ 

air. LEWIS: 1 dan't know that I can aay why a group 

da ea or do ea not. ~ 

WYEB- In ether wvda, the national orgsniiaiii-n of 

Boy Scoot* of America does not preee ha locals to have 

■aadaterr hei ■gnwnni check*? It allow* Uw losala to 

make thoee doosxmt? 

Mr. LEWIS: It cent be required eeroaa the board. 

SAWYER: /iwise-oner/ The Boy Scouta of America it 

alao trying to train tta troop leaden wnh *nn>her video 

that lay* down tpecrfie guideline*, what behavior i* in- 

appropriate and how to recognue po tent ial ar rn t et* . 



A* 



248 



2nd ACTOR: [Boy Scout irmninf iidoo) Additions) 
information about child moitnin n included in your 
pr ogram pscssts. 
SAWYER.- ; poiee-ovrry But for ill thtir educational ef- 
forts, the national headquarter* has cstahliahori no 
tystem of rnmrmf (ura troop leader* actually fo 
through training. Even though by 1988 the Boy Sooute 
had an addition to their Handbook, educational video* 
for the boys, guideline* for volunteer* and employ eee, 
and a new application, the confidential file* enow that 
pedophile* here roll managed to be c ome aeout lenders. 
Richard 9ung*r. suspended from scouung in the early 
70a, allowed beck is on probation— not until 1980 was 
Stinger arretted and eonnctad of actually abusing 
scouts in his charge. James Burt on and Darid Reed 
[ipf] , convi cted of child mo testation is Califo rni a they 
got around "the rule' requlrini two aau.t iaau*ia at ail 
~eenvitie* by forming their own aoovt troop. The eon* 
fldenual ffle* ahow that, over a 10* month period in 
1988, they molested mere than 30 chi.dren. And Rodney 
' Almost /«p?7. convicted last year of four counts of child 
sexual ibu— just monthi before his arrest, be we* 
giving miau siaas about his camp program. 

RODNEY ALMONT: I think, for the most pan, 
they're left with a \rr. M msmnrwe We hope that 
they re good memoriae. 
BAWYF.R- [vrmrvoiiir) Despite the problems 

Ki-rH.-yW^ by the confidential files, .hi Boy Scouts 
have been reluctant rvm to admit that documents exist. 
DON WOLF (iptf. We were aware of the fact that Boy 
Scouts had internally their own list. Blacklist, if yon 
will, of troubled individuals who hsd volunteered for 
Bey Secrets eervvee. 

SAWYER /votes-over/ Dos Wolf of Big Brothers/Big 
Sisters waa convinced the extensive Bey 9eeut files 
could help his organisation fight the problem of child 



Mr. WOLF: And we wanted to have access to that list, 
and aceiuerl them that w* would likewise keep a lis* 
and share that information with them. They said. "We 
don't have the* lis* the* you think w* have." 
SAWYER: They were lying. 

Mr. WOLF: Wall, they certainly wouldst admit that 
they had a list, and ere bellevad them to have * list. re*. 
SAWTEH. [voicwovtr) By 1*79. Si* BrvUiexwBla 
Sistsn had already eexnowl edged their orgmlistinn 
was a targvi fur all utters. Without, the Boy Scouts' hah) 
they aendiad their own esse* and ended up making than* 
apuucaUun process* use of the toughest is the nation It 
include* police checks, s training program, and a probe- 
uoo ptn-kel WoU* aay* tha Boy Scouts' approach didst 

work. 

Mr. WOLF: They tried to bide it, and that waa a bigger 

part of the problem. They didn't recognise that It was a 

pan of the problem, and t hey didn^jeek to become a 

part of the solution. 

8AWTER; Your erttic* aay, to put it bluntly, that you 

war* drtsjad ricking and ten am in g into dealing with 

too caHef aoue* problem, and that what you wanted to 



do, ustii you were forced to do it. was just huah it up. 
Mr. LEWIS: Thsre are people that want a silver bullet 
answer to everythmg, snd ware not going to pleass 
people who expect an absolute silver bullet solution to 
this proble m, 

SAWYER Ivoiet-ovtr] The confidential fuss show the 
Boy Scouts' answer to the problem often came down to 
public r elations damage control On* scoutmaster was 
secretly put on probation en the «-■-»■•"♦-•" that h* not 
touch boy*' genitals r.-abtoluuly NO TOUCHJNO of 
any port of th* body.... 7. Parents war* talked out of 
pressing charge* .against one accused scout lssdsr 
rosaed sAsm not to notify (A* poiien...7. And in the ease 
of another ac cu sed mas. a national hsailiiiiaima official 
wrote. "I hop* the new* madia mimtimi ite silanat 
relating to his mvolvement with Scouting." 

Day One's review of hundred* of Res' Remit file* 
ahow* an averag* of 99 reports of child abuse in th s or. 
gasusation every year. 

finsrrtjieuiuigj Isn't that s problem? 
Mr. LEWIS: It's vary imrmrtant to ue that one caae is 
one too many. Ninety-nine out of 600. TOO, 800 local 
council*. I dp n't thin e that yoo can aay that's ajiiiihlssn 
3AW TKR: You can t aay that's a probWmT 
Mr. LEWIS' Again, on* ease ie one toe tossy. 
SAWYER. Well, than. youV* got almost a hundred, en 
sverea**. a year. That's a 100 tirnee was* s tveblaa*. 

Mr. LEWIS: And you work forward ilaiaairslin and ea- 

hanrtng pregraass as you go. 

SAWYER: Th* mnfUiantial Bias shew th* Bay Scout* 

' ere e weade e late in reacting to the pechlew. and even 

*" today the Boy Scout* do not admit they are a primary 

' targe* ef co m ers, la fact, they call their n eesiss H sii • 

leader in sax abuse prevention Th* abuser* thams*lve* 
^ paint a very different picture 
— (inurvmjuAf] If you war* back out there today sad 

you weren't getting help, yeu think you esoid find • B*> 

9ssakrwaa> taT\K*a0/ 

•CARLBT Oh, I— it's— Tm sure that the) pceenuci u 

there, surety. S on sto o dy is— somebody is needy anongti 

there * eoaaebody that waste e good Wader. Yea. that'* i 

rtrwsftrTHty. of course it ia. 

SAWYER. Aud User* are other Carls out there. 

"CAB T .B*: Yes, unfortunauly, there are. 
SAWYER. Ae a matter ef fact, is tha past month at leas 
Or* mor* erect leader* in Ova differae* state* war 
Bcsrasaaswi tor sexually abusing the children in their can 
A* for th* Roy Scouts, thay told us Just today they hare a 
arm child proescaoB programs in th* i 
ANNOUNCE R: Stfl l to come on Day < 

RICE I rffflrT More and more pawns* east afford t 

bin that lawyer that cost* 110.000. 160,000. 1 100,000 
ANNOUNCES: Can you get your day to coon with s 
or«rwn*ia»»d, overworked ecurt-appommd attorney? 

Juag» CALVIN JOHNSON: Justice is not equal 

had to this room by ail. no, it's not. 
ANNOUNCES: And— 

[horn* aideo of tornado] 
WOMAN: Tim* v> go ins ids 



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